R. v. Lira, 2021 ONSC 1766

COURT FILE NO.: CR 21-40000107-0000

DATE: 20210430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IVAN DAVID LIRA

Defendant

Kasia Batorska, for the Crown

Jordan Casey, for the Defendant

Spies J.

HEARD: February 8, 9, 11, 12, 15-18, 22, 25, 26, March 1-4, 8, and 9, 2021

Ruling on Crown’s Count to Count Similar Fact Application

Overview

[1] The defendant Ivan Lira is charged with six sets of robbery offences, including pointing a firearm and disguise with intent, arising out of six robberies that occurred between January 19, 2018 and February 28, 2018. In addition, he is charged with offences relating to possession of a firearm (a rifle, a magazine, and ammunition, which were found inside a suitcase that Mr. Lira was pulling at the time of his arrest on March 1, 2018) and one charge of possession of a weapon contrary to a prohibition order. In total, he faced 20 charges.

[2] Mr. Lira re-elected trial by judge alone and pleaded not guilty to all charges. Mr. Lira and the Crown consented to conducting this trial entirely by Zoom.

[3] William Snyder, Mr. Lira’s co-accused, was charged with three sets of offences arising out of three of the six robberies. Mr. Snyder pleaded guilty on November 18, 2019.

[4] At the outset of this trial, Mr. Lira brought an application to exclude all of the seized evidence, alleging breaches of ss. 8, 9 and 10(b) of the Charter of Rights and Freedoms. I dismissed that application: see R. v. Lira, 2021 ONSC 1380 (“Charter Ruling”).

[5] The Crown brought this similar fact application seeking an order that the evidence directly relevant to each count in the Indictment be admitted as evidence of identity on all counts. As the Crown's application related to conduct intrinsic to the indictment, the application was argued at the end of the Crown’s case. On March 9, 2021, I gave brief oral reasons for granting the Crown’s application in part, with written reasons to follow. These are those reasons. Following my oral ruling, the Crown withdrew the charges related to the robbery of the Royal Bank of Canada located at 415 The Westway, on January 29, 2018 (Counts 4-6).

The Issues

[6] It is the position of counsel for the Crown, Ms. Batorska, that these robberies were committed by a rotating group, that two persons from this group committed all the robberies, and that Mr. Lira was always one of those two people. She submits that there is a high degree of similarity in the manner in which these robberies were committed, and that there is some evidence linking Mr. Lira to each of the robberies, such that the relevance of this evidence outweighs its prejudicial effect. Ms. Casey, on behalf of Mr. Lira, takes the position that there are insufficient similarities between the acts to permit a finding that the same group likely committed them and to the extent there are similarities, they largely attach to generic facts that would appear in any offences of this nature. She also takes the position that there is no evidence linking Mr. Lira to any of the robberies.

[7] Counsel agree as to the applicable law. There are some factual issues on this application that I need to address. Essentially, the issue is whether the Crown has met its burden of satisfying this Court, on a balance of probabilities, that the evidence on all counts meets the test for admission in the context of a rotating group.

[8] For the reasons that follow, I found that the Crown had met its onus save for Counts 4-6.

The Evidence

[9] Surveillance video evidence of each of the robberies, as they were committed, taken from inside the premises being robbed, was entered into evidence along with some additional video evidence from other locations. In addition, I received evidence from the investigating police officers, some of the witnesses who were present at the time of the robberies, evidence about the vehicles used by the suspects in some of the robberies, expert evidence about the firearms used in the robberies and the one found in Mr. Lira’s possession at the time of his arrest and technical evidence concerning the extraction of data from Mr. Lira’s cellphone.

[10] There is no dispute that the six robberies occurred. In each of the six robberies, two suspects entered the premises in question. Consistently, only one suspect was armed with a firearm and the other carried a reusable shopping bag or another type of bag to place stolen items into. It is the position of the Crown that Mr. Lira was the suspect who carried the firearm in all six robberies. That will be an issue for the trial. For the purpose of these reasons, I will refer to the suspect with the firearm as Suspect #1 or the gunman. I will refer to the other male, the one carrying one or more bags, as Suspect #2.

[11] I heard a lot of evidence about what the suspects in the robberies were wearing and what could be said about their appearance, as described by eyewitnesses and as can be seen in the surveillance videos. I have not repeated that evidence because the primary investigating officer, Detective (“Det.”) Nasser, testified that he did not rely on any particular piece of clothing worn by the suspects to link the robberies, save for what he described as a black, three-hole balaclava that had a round hole for each eye and a person’s mouth (referred to hereafter as “3- hole balaclava”). That type of balaclava was worn by Suspect #1 during many of the robberies and by Suspect #2 on some occasions. As I will come to, Det. Nasser testified why he believed the 3-hole balaclava to be significant. I agree with the view of Det. Nasser that there is no other aspect of the clothing worn by the suspects that is similar from one robbery to another. As for the appearance of the suspects, save for one aspect of the gunman’s hairstyle, there was no reliable evidence that could be used to identify Mr. Lira as the gunman.

Counts 1-3 – January 19, 2018 – Robbery at the Canadian Imperial Bank of Commerce at 201 Lloyd Manor Road (“CIBC – Lloyd Manor robbery”)

[12] On January 19, 2018, two masked men robbed the Canadian Imperial Bank of Commerce (“CIBC”) at 201 Lloyd Manor Road. Based on the surveillance video from inside the bank, Suspect #1 entered the bank first, holding what I would describe as a large black rifle with a long barrel and pistol grip in his right hand. He was wearing a 3-hole balaclava. Suspect #2 was wearing a bandana covering his face and was carrying a reusable bag and put what turned out to be a burgundy jacket in the door to prevent it from closing. He then made his way behind the tellers’ counter where he emptied cash into the bag he was carrying. Suspect #1 remained on the opposite side of the tellers’ counter. Approximately one minute and 13 seconds later, both men left the bank.

[13] This robbery was witnessed by Sinan Al-Faqueeh, who was employed by the bank as a Senior Financial Advisor. Another woman was in an office and two tellers, Yagniashish Bhatt and Mnaal Malik, were behind the counter. Mr. Al-Faqueeh was in his office and on the phone when the two suspects came in. He threw the phone down and the man with the gun, which he described as a big machine gun, stood somewhat sideways in front of the door to his office and told him to look at him and do what he was saying and that no one would get hurt. When Mr. Al-Faqueeh saw the other man running out, he was holding something that he presumed was cash.

[14] At one point during the surveillance video, Suspect #1 can be seen holding the rifle in his right hand and turning it sideways so that his palm was facing downwards in a pronated position. Det. Nasser testified that during the investigation, there was a debate among the officers as to what type of rifle Suspect #1 was holding. The majority view at the time was that he was armed with an AK47. Later, there was general agreement among the officers that it was a SKS rifle, and the suspects of these robberies became known to police as the “SKS bandits”.

[15] Ms. Bhatt was working as a teller at the CIBC on the evening in question. She recalled that shortly before closing time, around 6:45 p.m., two men entered the bank. She believed that both men had a long rifle but, in that regard, she was clearly mistaken. Ms. Bhatt said that one of the men came behind the counter and that would have been the man with the bag, based on the video surveillance. Ms. Bhatt testified that the other man with the gun pointed the rifle at Mr. Al-Faqueeh, who was in his office, told him not to move and to stay where he was.

[16] Cash was demanded from Ms. Bhatt and she opened one of the cash drawers and the man with the bag took the cash. Her other drawers were empty or locked. This suspect then took cash from the reserve drawer that her colleague, Ms. Malik, had left open. He was in a hurry to run away and dropped some cash on the floor, picked it up and then ended up dropping one of the bags he had put cash in, leaving with only one bag of cash.

[17] Ms. Bhatt testified that it was dark outside, and she could not see clearly but she recalled a car parked right outside the branch, with its lights on during the robbery—a very old model with four doors. After the robbery her last vision was that the two men got in that car and pulled away quickly.

Counts 4-6 – January 29, 2018 – Robbery at the Royal Bank of Canada at 415 The Westway (“RBC – Westway robbery”)

[18] On January 29, 2018, a robbery occurred at the Royal Bank of Canada (“RBC”) at 415 The Westway. Based on the surveillance video there were two male suspects. Suspect #1 entered the bank first. He had what I would describe as a silver handgun in his right hand and was wearing a 3-hole balaclava. Suspect #2 was wearing a one-hole balaclava, with the opening at his eyes, and he put a piece of cardboard in the door as the suspects entered to keep it from closing. Suspect #2 was carrying a red reusable shopping bag. This time both men made their way behind the tellers’ counter. Approximately one minute and three seconds later, both men left the bank. As Suspect #1 exited the bank, he put the gun back into his front right-side waist area.

[19] At times during the surveillance video, Suspect #1 can be seen holding the handgun in his right hand, pointing at people, sometimes at a 45-degree angle with the grip parallel to the floor. From stills showing the handgun, Det. Nasser testified that he believed Suspect #1 was “racking” the handgun because it looks like it has two barrels. He explained that you have to pull the top of the handgun back to load it properly; racking allows a bullet to go into the chamber. Det. Nasser also pointed out a still where you can see that the hammer at the back of the firearm is pulled back, so it is ready to fire—you only have to pull the trigger.

[20] Ivan Vavryschuk was working as the central teller at the time of the robbery. There were a number of other people working inside the bank at that time. He was behind the tellers’ counter when the suspects walked into the bank and told everyone to freeze. Mr. Vavryschuk described the gun as appearing black and metallic and that it looked very heavy and very real. The man with the gun told them not to move and asked for the money. When no one answered, he asked again and when still no one answered, Mr. Vavryschuk told him that they did not have any cash drawers and that they only had a cash dispensing unit that needed a client’s pin, in which case it could only access the money in their account. The gunman started opening cash drawers and eventually pointed his firearm at another teller, Nisha Grewl, at which point Mr. Vavryschuk told him again that they did not have money in the drawers. The gunman then went over to two customers of the bank who were being served at the counter and took the money that they had just been given. Mr. Vavryschuk did not have any contact with the other man with the bag.

[21] No witness saw a vehicle used in this robbery, but Ms. Batorska’s position is that a stolen silver four-door 2000 Honda Civic, CDDR919, was used. The Defence admits that on January 27, 2018, a silver 2000 Honda Civic license plate CDDR919 (“Honda CCDR919”) was stolen from 24 Leith Hill Rd. in Toronto. The Defence also admits that on January 29, 2018, at 2:04 p.m., PC Santeralli located Honda CDDR919, out front of 61 Ladbrooke Rd. The evidence is that this location is 230 meters from this RBC, as the crow flies, and 84 meters from Callowhill Drive—about a one-minute walk. I will come to the significance of the Callowhill address. The Defence admits that Honda CCDR919 was found unoccupied with the engine running. The vehicle was towed for forensic examination, but no useful evidence was found.

[22] Det. Nasser testified that in slides of this and other recovered stolen Hondas believed to be used in these robberies, you can see that the right side of the steering column is “punched”, which he explained is something that is done to the outside of the ignition as an easy way to start older cars that do not used a chipped key.

[23] A surveillance video taken on January 29, 2018 (the day of the robbery), from a Tim Hortons located in the same plaza as the RBC (“Tim Hortons video”), shows what appears to be a silver or grey four-door car travelling in the direction of this RBC at approximately 1:23 p.m. Although Ms. Casey submits that the colour of what the passenger was wearing cannot be seen, I disagree. The passenger in the front seat appears to be wearing a red or orange top that is consistent with the colour of what Suspect #1 wore during the robbery, based on the surveillance video taken from inside the bank.

[24] The Crown also relies on surveillance video from outside 53 Callowhill Drive, just east of the plaza where the RBC is located, taken on January 29, 2018, at approximately 1:20 p.m. (“Callowhill video”). In that video, a man who looks like Suspect #1, based on what he is wearing during the robbery, can be seen walking on Callowhill Drive, followed by a man that, based on his clothing, looks like Suspect #2. Det. Nasser testified that, although based on the video the suspects appeared to walk by 53 Callowhill Drive towards the RBC, if the time on the video was off a little when it was seized that could make a difference. In fact, Det. Nasser testified that he believed the suspects were walking away from the robbery or going to a different vehicle. He said he was almost certain that they used a different stolen vehicle to leave the area of this robbery and that they did this for a number of the robberies. It is his belief that they would not leave on foot with a firearm and stolen property in their possession. He believes these suspects had access to several stolen vehicles.

Counts 7-9 – February 12, 2018 – Robbery at the Bank of Montreal at 57 Provost Drive (“BMO – Provost robbery”)

[25] On February 12, 2018, a robbery occurred at a Bank of Montreal (“BMO”) at 57 Provost Drive at approximately 4:50 p.m. Based on the surveillance video from inside the bank, this robbery involved two male suspects, both wearing 3-hole balaclavas. Suspect #1 entered the bank first. He had what I would describe as a silver handgun that he pulled from the right-side of his waist area and held in his right hand. He also had what appears to be a plastic bag in his hand, but it does not appear that he used it. Suspect #2 was carrying a multi-coloured reusable shopping bag from Metro.

[26] Det. Nasser pointed out that the surveillance video from BMO shows that instead of tilting the gun inwards and down, Suspect #1 was tilting it outwards and down. I agree with that observation. Det. Nasser also pointed out that the position of the hammer of the handgun shows that it was ready to fire and he pointed out a black rectangular marking that can be seen on the side of gun which is consistent with what can be seen on the RBC surveillance video from the robbery on January 29, 2018. As the two suspects made their way out of the bank, approximately one minute and ten seconds after entering, Suspect #1 can be seen putting the gun into the right-side pocket of his jacket.

[27] Det. Nasser also testified that one can tell from the video evidence from the bank, that Suspect #1 has longer hair that is tied back in a ponytail. He believed Suspect #1’s hair was braided, given how it was tied in a thick bun at the back of his head. Det. Nasser also pointed to what he referred to as distinct bumps or peaks and valleys that can be seen across the top of the balaclava worn by Suspect #1, which he believes is consistent with three cornrows. Det. Nasser denied the suggestion that he was seeing seams in the balaclava itself. He explained that he believes these are cornrows because of the piece of hair that can be seen in one of the stills sticking up at the top of the bun at a weird angle. He believes that this piece of hair would not stay up like that if the hair were loose. This is a factual issue I will come to.

[28] This robbery was witnessed by Sonja Misur, who was a bank teller working at the BMO at the time, and Mohd Razzaque, the Financial Services Manager. Ms. Misur was standing by her desk at the time of the robbery. When the two suspects entered the bank, the man with the bag went behind her and started opening drawers. The man with the gun stood next to her the entire time and demanded to know where the money was. The CRU machine, which held the cash, was locked, and she was unable to open it so there was no cash to give the men which caused her to be very scared. They left without any money.

[29] Mr. Razzaque was at a desk and on the phone helping a client when the man with the gun demanded that he put the phone down. This man pointed the gun at him. He heard the man with the gun demand to know where all the money was twice. Mr. Razzaque observed the men leaving the bank and running to a blue car with the license plate of ARZY313.

[30] It is admitted by the Defence that, on February 12, 2018, at approximately 9:00 p.m., Michael Habib observed a blue Honda Civic license plate ARZY313 (“Honda ARZY313”) parked in a “Green P” parking lot at 2760 Old Leslie St. in Toronto. This Green P is 327 metres from this BMO. When Mr. Habib returned to his vehicle on February 13, 2018, at approximately 1:20 a.m., he saw that the blue Honda was still in the parking lot. He noted that the driver’s side window was down, and that the car was still running. At that time, Mr. Habib called the police. It is admitted by the Defence that this vehicle was stolen sometime between February 7 and 12, 2018, from 360 Ridelle Ave. in Toronto. Again, police attended, and the vehicle was towed for forensic examination but nothing of value was found. Det. Nasser explained, based on photographs of this stolen vehicle, that the ignition had been punched.

Counts 11-13 – February 14, 2018 – Robbery at the CIBC at 3420 Finch Ave. East (“CIBC –Finch robbery”)

[31] On February 14, 2018, at around 3:45 p.m., the CIBC at 3420 Finch Ave. East was robbed. The surveillance video from inside the bank shows what appears to be a green older model vehicle pull up in front of the bank at approximately 3:45 p.m. Two masked men exited the vehicle and entered the bank, both wearing a 3-hole balaclava. Suspect #1 had a handgun in his right hand and entered the bank first. Suspect #2 came in after him and can be seen putting something in the door to keep it from closing. This item was left behind and turned out to be a sling or sleeve for a broken arm. Suspect #2 was carrying a multi-coloured reusable Metro bag that looks the same as the one seen in the robbery of the BMO on February 12, 2018. Both men made their way to the tellers’ counter area and Suspect #2 can be seen going through the various drawers. Approximately one minute and 15 seconds later, both fled the bank into the car.

[32] Det. Nasser observed from the surveillance video that Suspect #1 was holding the gun pronated – tilted to the side and down – and it appears that he was giving instructions to crowd control while Suspect #2 came into the bank and collected the stolen items. I agree with these observations.

[33] Jenny Liang was working at the front reception desk in the CIBC at the time of the robbery. She testified that Annie Tan, a teller and the manager Yasmin Datoo were also present. I have only the evidence of Ms. Liang apart from one customer as I will come to. She testified that during the robbery Ms. Tan was behind the teller’s counter. Ms. Liang thought both men had guns but only the silver handgun can be seen in the video. She testified that the man with the grey hoodie had a small black gun. She could not describe the gun she believed was being held by the other man. The man with the grey hoodie pointed his gun at her and told her to hold her to put hands up. She then saw them both go behind the teller’s counter where Ms. Tan and another teller, Alice, were, and they called Ms. Datoo out after being told she was the manager.

[34] Ms. Liang heard the men tell the teller, presumably Ms. Tan, to open the drawer. She saw them take all the money from both the drawers of Ms. Tan and Alice. The man in the black hoodie had a bag and put the money in a bag and they ran away.

[35] Makrouhi Hanna was a customer in the bank that day and she observed the robbery. She testified that the man with the gun held it with the barrel pointed to Ms. Liang’s head. She recalled the man with the bag going behind the tellers’ counter and taking money from the drawers. She testified that they went to a car which was parked in front of the bank that was a green older model Honda Civic or Accord. They both got in the car – she believed that the man with the gun was driving and they drove away towards Warden.

[36] As the getaway car left the bank, the front driver-side panel and rear part of the car can be seen in the surveillance video through the front doors of the bank. Det. Nasser was able to identify this vehicle as a green Honda Civic made between 1997 and 2002. He was certain of this based on his experience in surveillance and from knowing the shape of the vehicle because he has owned multiple Hondas. There is no question in my mind that Det. Nasser is correct in his opinion of the make of this vehicle when the images of this green car are compared to photographs of other Honda Civics recovered by police during the investigation of these robberies.

Counts 15-17 – February 22, 2018 – Robbery at the Shoppers Drug Mart at 51 Underhill Drive (“SDM robbery”)

[37] On February 22, 2018, a robbery occurred at a Shoppers Drug Mart (“SDM”) at 51 Underhill Drive. Based on the surveillance video evidence from inside the store, the two male suspects were both wearing a 3-hole balaclava. Suspect #1 was first through the door and he was wearing a light blue sweatshirt with the hood up. He had what I would describe as a silver handgun in his right hand and Suspect #2 was carrying a grey reusable bag. Based on the surveillance video, Det. Nasser pointed out that at times during the robbery, Suspect #1 was holding the gun in a tilted manner. I agree with that observation.

[38] On the surveillance video, the two suspects made their way to the pharmacy area, in the company of a male store employee. Both went behind the counter of the pharmacy. Suspect #2 can be seen emptying the contents of the safe into the bag and taking cash from the cash register while Suspect #1 is holding out the firearm, presumably to ensure the pharmacist complies. Suspect #1 can be seen taking an employee up to front counter and he gets cash from the cash register there. Suspect #2, eventually, also made his way to this cash register area. Approximately three minutes and ten seconds after entering the SDM, both men fled the store.

[39] I have already summarized the evidence of Det. Nasser in my Charter Ruling about the fact that officers checked the licence plate number AJHJ014 which the manager of the SDM, Henry Kuzniak, gave them as the licence plate he saw on the vehicle the suspects left in. I also summarized in that Ruling why Det. Nasser concluded that this licence plate was not the licence plate on the getaway vehicle as it was still attached, later on the day of the robbery, to a black SUV at the address associated with that vehicle.

[40] The Defence admits that, on February 22, 2018, at approximately 10:00 p.m., officers Robertson and Hewitt, attended at 52 Alpaca Drive in Toronto to speak to Tania Lysko, who was the registered owner of motor vehicle license plate AJHJ014. Ms. Lysko confirmed that the car bearing that license plate is a black 2012 Kia Sorento and that this vehicle was not stolen. It is also admitted that the officers observed this vehicle in the driveway.

[41] It is also admitted by the Defence that on February 19, 2018, a beige 2000 Honda Civic license plate AYHJ014 (“Honda AYHJ014”) was stolen from 4455 Bathurst St. in Toronto and that on February 23, 2018, Alexander Itskovych, the registered owner of that vehicle, reported to police that the vehicle had been stolen.

[42] In addition, I have already summarized in my Charter Ruling what Det. Nasser recalled about his conversation with Mr. Kuzniak the day after the robbery, when he went to pick up the video surveillance evidence from the SDM and obtain the evidence of the three witnesses to this robbery, Mr. Kuzniak, Kaylee Anstey and Stephanie Deepnarine, in terms of what they saw of the vehicle used in that robbery. I will not repeat all that evidence.

[43] Ms. Deepnarine walked into the SDM and walked down an aisle and saw a guy holding a gun to an employee. They were both behind the cash register at the front of the store. She stopped and stood still and waited for instructions. The gunman told her to stop what she was doing and stand still. Ms. Deepnarine testified that she saw that he was trying to get money from the till, but he could not get into it. The gunman then told her to go to the back of the store. She along with the employee behind the cash and the gunman went down one aisle to the back of the store. There were a few people there. Ms. Deepnarine did not testify that the gunman used any force on her nor did she say that she witnessed him getting physical with anyone inside the pharmacy. She testified that the man with the gun told the other man who was behind the pharmacy counter to hurry up and they left very quickly.

[44] I did not hear from the cashier, but Tara Zheng was employed as a pharmacist at this SDM and was working at the pharmacy intake counter at the time of this robbery. She clearly had trouble distinguishing the two men and believed they both had guns, but she was able to testify about what the man in the blue sweatshirt did. Based on the video surveillance, he was the only one with a gun, a silver handgun.

[45] Ms. Zheng testified that she was working in the pharmacy area by herself and when she heard some noise and saw two guys holding their front store cashier as “hostage” – they had guns in their hands and were telling the cashier to open the door to the pharmacy. She said that when the man with the light-blue sweatshirt pointed the gun at the cashier he held the gun down at a 45-degree angle at her and the cashier.

[46] Based on the video surveillance there was no door but there may have been a counter height gate that can’t be seen because of some privacy panels that block the view of the way Suspect # 2 came behind the counter. Suspect #1 jumped over the pharmacy counter although Ms. Zheng mixed them up in her evidence and said it was the man in the dark hoodie, Suspect #2 who jumped over the counter. Ms. Casey submitted that it was the gunman, but Ms. Zheng testified that it was the man with the bag who told her to open the safe and asked her to show him where the Percocets were. She handed over about 10 bottles—100 tablets per bottle, around 1000 tablets in total. This man then asked her if they had Methadone and she told him that they did not. He then demanded that she open the cash register, which she did, and he took all of the cash in the register. This is consistent with the surveillance video. She did not testify that either man used any force apart from holding a gun.

Counts 16-19 – February 28, 2018 – Robbery at the Sheppard Warden Pharmacy at 3410 Sheppard Ave. East (“SWP robbery”)

[47] On February 28, 2018, between 3:10 and 3:13 p.m., the Sheppard Warden Pharmacy (“SWP”) at 3410 Sheppard Ave. East was robbed. The surveillance video shows two masked men entering the store. The first man to enter the store was wearing what appears to be a black and white mask which covered his face under his eyes. He was carrying what I would describe as a black rifle with a short barrel and what appears to be a pistol grip in his right hand. Suspect #2 was masked in a 3-hole balaclava. He was carrying a red and black Metro re-useable shopping bag. Both men went behind the counter of the pharmacy area. After two minutes and four seconds they both exited the pharmacy.

[48] Det. Nasser pointed out from the video surveillance of the robbery that the rifle that Suspect #1 was carrying had a curved magazine, a pistol grip and no butt stock, and was consistent in appearance with the long rifle used in the earlier robberies, save that the barrel was shorter and did not have the sight at the top end of the barrel. Det. Nasser testified that he had never seen a rifle with a barrel that short before.

[49] Irene Takla, the pharmacist and Christina Catay, the pharmacist assistant, witnessed the SWP robbery. Ms. Takla testified the two men came in the back entrance which she said is towards the garage. One man had a big black gun with a big nozzle and the other had a recycling red and blue grocery bag. She was behind the counter with Ms. Catay and a volunteer. The man with the gun told them not to move and that they would not hurt them. The gun was pointed up at them. She believed the gun was real and she was scared.

[50] Ms. Takla testified that the other man with the bag was banging on the counter asking where the money and the “percs” were, which she understood to be Percocet. He went behind the counter and Ms. Catay opened the cash register and the man with the bag took the money from the register and then he went to the compounding room, where they make their mixtures. The man with the gun came behind the counter and went towards the safe where she was standing and told her to move back. He found the safe in an office which was open. This safe is where the narcotics and ADHD medication are kept. Ms. Takla testified that this man picked out bottles from inside the safe and called his friend to come over, saying that he found them. The man with the bag came over and started filling the bag with the bottles. The man with the gun then rounded up all the people in the pharmacy together to one side of the pharmacy and he told them not to worry, that they would not hurt them and told his friend to come on. The man with the bag came out and they left together through the same back entrance they came in.

[51] Ms. Catay testified that she was working at the time of the robbery and suddenly two men came in from the back entrance and they just walked into the dispensary behind the counter and yelled that nobody move. The back entrance can also be used by customers and leads to the parking lot. The men were asking for cash and “oxy’s”, namely Oxycodone, a narcotic. She did not know which one was yelling. The man with the bag asked her where the cash was, and she pointed to the cash register and opened it for him. As one point, she believed that one of the men, she was not sure which one, asked where the “percs”, namely Percocet. The man with the gun went into the compounding room and he began to shove bottles into his pocket. He also yelled at the man with the bag to get the “drugs” and that they already had the cash. She heard the man with the bag demanding that Ms. Takla tell him where the drugs were. When he found the safe in the owner’s office, it was open, and he started shoving the bottles into his bag. After rounding everyone in the store up they ran out the back entrance.

[52] It is admitted that Ms. Catay called the police at 3:12 p.m. when the men had left the pharmacy.

[53] No witness observed a vehicle used by the suspects during this robbery. For reasons I will come to, the theory of the Crown is that they used Honda AJHJ014.

The inventory of drugs stolen from the SWP

[54] The day after the robbery Ms. Takla attended at the SWP. She was required by law to do a complete narcotic reconciliation to see what was stolen so she could report it to Health Canada. She explained how she used the previous count of what they had in the pharmacy and added the purchases since then and subtracted what had been dispensed since. What was left was supposed to equal the bottles/number of pills in the pharmacy.

[55] Ms. Takla explained that each bottle of pills has a Drug Identification Number (“DIN”), which is unique for every type of medication and strength. In other words, two bottles of the same medication and strength would have the same DIN number. Ms. Takla explained that when SWP purchased narcotics, they added a sticker to each bottle purchased which includes the date of purchase and the invoice number (“Sticker”). This Sticker is unique to that specific bottle. Using the Sticker, she was able to retrieve the invoice number and purchase date and compare it to the SWP records and the purchase records. These records are kept by law. Using the supplier purchase form and her logbook she did her reconciliation and prepared a list of the narcotics stolen on February 28, 2018, which was entered into evidence as a business record. Ms. Casey did not challenge any of this evidence from Ms. Takla.

[56] Ms. Takla’s list of narcotics stolen on February 28 shows that 258 Percocet tablets in sealed and open bottle were among the drugs stolen.

[57] Ms. Takla was shown a bottle of Concerta found in Honda AYHJ014 and photographs of each of the pill bottles that were seized from 22 Varma Drive (“22 Varna”). She was only able to identify those with Stickers. She explained in detail how she looked at the photographs of the seized bottles and how the information on the Sticker that was present on some of the bottles proves that a particular bottle was one stolen from the pharmacy. Ms. Casey did not challenge any of this evidence from Ms. Takla about the specific bottles of medication that she identified as being stolen from the SWP.

[58] Ms. Takla also identified some of the bottle of pills that were found at 22 Varma, but it is not necessary for me to summarize that evidence here.

Further police investigation on February 28, 2018 after the SWP robbery

[59] Mobile Support Services (“MSS”) had been asked by Det. Nasser a couple of days earlier to surreptitiously follow three men believed to be involved in the theft of older model cars. He did not believe they were involved in the robberies but hoped surveilling them might lead to a clue as to who was involved in these robberies. MSS was instructed to photograph and identify these men and obtain their addresses. Det. Nasser gave MSS officers licence plate numbers and addresses of interest, as well as photographs and images of the robbery suspects and a photograph of one of the three men that he had identified. MSS was just to do surveillance and someone from the holdup squad was always with them.

[60] Quite by chance, on February 28 at approximately 3:50 p.m., Detective Constable (“D.C.”) So, a MSS officer, while checking the area of 3905 Bathurst Street, located Honda AYHJ014 in the rear parking lot of 3886/3888 Bathurst Street. The car was off and empty. Det. Nasser believed this vehicle was used in the SDM Underhill robbery and so he asked that MSS officers continue to watch this vehicle. This location is 11 km from the SWP that was robbed. As both the SWP and the location where Honda AYHJ014 was found are both close to the 401 Highway, it would not have taken very long to drive from the SWP to the location where the vehicle was found, if in fact it was used in the SWP robbery.

[61] At approximately 3:55 p.m., DC Shreeram began watching Honda AYHJ014. He observed a man approach. The man was seen at the trunk area, walking around the car, standing by the driver’s side door, and generally in the immediate vicinity of the vehicle. DC Shreeram continued to observe the man around Honda AYHJ014 from 3:55 to 4:13 p.m. Although I will have to make final findings of fact at the end of the trial, at this stage there is certainly credible evidence to believe that the man loitering at the back of Honda AYHJ014 was Mr. Lira. I make this finding based on the pictures and video evidence taken by the MSS officers, the fact that it is admitted by the Defence that Mr. Lira was the person who was arrested at the Fairview Mall at 2:14 p.m. on March 1, 2018, Mr. Lira’s image in his booking video and the photographs taken of Mr. Lira at the time of his booking. Accordingly, Mr. Lira was loitering by Honda AYHJ014 about 30 minutes after the SWP robbery. At this time, he was dressed completely differently than either of the two men in the video of that robbery.

[62] Shortly afterwards MSS officers saw Mr. Lira with another man. Although I have no independent evidence to confirm Det. Nasser’s evidence that he identified the person Mr. Lira was with as Mr. Snyder, that evidence was never contested by Ms. Casey. Mr. Snyder was also dressed completely differently than either of the two men in the video of that robbery.

[63] Both of these findings are made now for only for the purpose of this application as there is credible evidence to believe these facts but my final findings in this regard will be made at the end of the trial.

[64] The two men believed to be Mr. Lira and Mr. Snyder were observed by MSS officers crossing Bathurst Street each carrying a red and black reusable Metro bag (“Metro Bag”). The inside of these bags cannot be seen but the Crown’s position that they each appeared full is credible. Based on my observations, the Metro Bags they were carrying were identical to the bag Suspect #2 was carrying during the SWP robbery but of course those bags are not unique.

[65] MSS officers then observed that when the two men returned to the rear of 3886-3888 Bathurst Street, the man believed to be Mr. Lira was no longer carrying the Metro Bag, but Mr. Snyder was still was carrying his.

[66] At approximately 4:15 p.m., the two men believed to be Mr. Lira and Mr. Snyder were observed by MSS officers as they picked up two black suitcases from the area of a garbage bin at the rear of 3886 Bathurst Street. The two wheeled the suitcases to Honda AYHJ014 and entered the car, with the suitcases. They drove away with Mr. Lira driving and Mr. Snyder in the passenger seat. They were followed by police to the area of 490 Wilson Ave., where both men exited the car with the two suitcases. This address is within walking distance of the Wilson Subway Station and they were both seen by MSS officers, each pulling a black suitcase and one carrying a bag, travelling on foot to the subway station.

[67] Various MSS officers followed Mr. Lira and Mr. Snider into the Wilson Subway Station and onto the subway platform. They took a southbound train two stops to Lawrence West Station, exited the subway, and walked along Lawrence Ave. West to 22 Varna. This is a two to three story community housing building. The two males were seen entering 22 Varna Drive, each with a suitcase.

[68] The Crown relies on further observations made of various MSS officers from this time until Mr. Lira was arrested the next day on the TTC platform at the Fairview Mall at 2:14 p.m. I do not intend to refer to that evidence in this Ruling as it is in dispute and I found that I was able to decide the Crown’s similar fact application without reference to this evidence.

Further investigation on March 1, 2018

[69] There is no dispute that when Mr. Lira was arrested on March 1, 2018, he was pulling a black suitcase and when it was searched police found a black rifle in the main compartment of the suitcase and in the front zipper pocket of the suitcase, a magazine containing 17 bullets.

[70] Honda AYHJ014 was observed by MSS officers from the time it was left parked at 490 Wilson Ave. until it was seized by the police. The Defence admit that on March 1, 2018, during the forensic examination of Honda AYHJ014, the officer who conducted the examination found a sealed bottle of Concerta under the front passenger seat of the vehicle. The officer photographed the bottle of Concerta and returned the Concerta to the registered owner along with the vehicle.

[71] The Defence also admit that the registered owner of Honda AYHJ014, Mr. Itskovych, received the property from his vehicle, including a cardboard box containing the Concerta. In May 2019, he returned the Concerta bottle to the police upon being requested to do so. Mr. Itskovych has confirmed that the Concerta bottle did not belong to him.

[72] There is credible evidence that is not disputed that when Mr. Snyder was arrested by police shortly after Mr. Lira’s arrest at 22 Varna apartment 206 and that during the execution of a search warrant, police found nine pill bottles in a plastic bag in the living room of apartment 206, which contained various medication, including Percocet, Ocycodone and OxyContin. Some of these medications were later identified by Ms. Takla as being taken from the SWP. A second black suitcase was found by the door of apartment 206.

The Governing Principles of Law

[73] Counsel agree on the principles of law applicable to similar fact evidence where identity is in issue in a rotating group context. The cases that I relied upon primarily in coming to my decision are as follows: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228; R. v. MacCormack, 2009 ONCA 72; R. v. Kanthasamy (2020), 2020 ONCA 25, 149 O.R. (3d) 409 (Ont. C.A.), where the court upheld Fairbairn J. (as she then was) in R. v. Kanagasivam, 2016 ONSC 2548. In fact, I found the decision of Kanagasivam to be most helpful as it is a very comprehensive review of the law and how it should be applied by a trial judge in the context of a rotating group. The main principles that I took from these cases, relevant to the issues before me were as follows:

a) Evidence of similar acts is presumptively inadmissible. The onus is on the Crown to satisfy the trial judge, on a balance of probabilities, that the probative value of the evidence on a particular issue in the context of the case as a whole, outweighs its potential prejudicial effect and thus justifies its reception: MacCormack, at para. 48.

b) The admissibility of similar fact evidence requires a two-step process: the first has to do with the degree of similarity required of various acts to qualify for reception as evidence of similar acts to prove identity of the person responsible for a crime; the second concerns the use of evidence that links a defendant to the acts in the determination of admissibility: MacCormack, at para. 47.

c) Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a “high degree of similarity” between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence: Arp, at para. 43; MacCormack, at para. 50.

d) In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp, at para. 45; Handy, at para. 81; MacCormack, at para. 50.

e) In the case of a group, Perrier discusses a two-stage test. At the “first stage”, where the group is being identified, the Arp test will be used to determine whether "one group activity can be used to identify the group responsible for another": Perrier, at para. 31. Assuming the first stage is passed, the “trier of fact should be permitted to draw an inference that the same gang committed the acts” (emphasis added): Perrier, at para. 31; Kanathasamy, at para. 58

f) The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: Perrier, at para. 21; MacCormack, at para. 52.

g) Any inferences drawn from the evidence must be rooted in common sense and “intuitive notions of probability and the unlikelihood of coincidence”: Handy, at para. 42.

h) As a distinct pattern of similarities between acts emerges, the probative value of the evidence pointing toward identity rises because of the improbability of coincidence that an accused will be implicated in more than one similar act: Arp, at para. 43.

i) Handy, at para. 82, provides a non-exhaustive list of factors for the trier of fact to consider in an application to admit similar fact evidence:

• Proximity in time of the similar acts;

• Extent to which the other acts are similar in detail to the charged conduct;

• Number of occurrences of the similar acts;

• Circumstances surrounding or relating to the similar acts;

• Any distinctive feature(s) unifying the incidents;

• Intervening events; or

• Any other factor which would tend to support or rebut the underlying unity of the similar acts.

j) Using the criteria set out at para. 82 of Handy and at para. 22 of Perrier as a starting point, the court must consider whether there is a sufficiently high degree of similarity between the acts to be sure on a balance of probabilities that the same group likely committed the acts in question: Perrier, at paras. 20-21.

k) The overall point of this exercise is to show that the objective probability of coincidence, given all of the items of similarity, together with the connections among the individuals, is low. Thus, it is permissible to infer that the same group committed the acts: Perrier, at para. 31; Kanathasamy, at para. 38.

l) In general, the “similarity” issue is to be decided without reference to evidence linking the accused to each alleged similar act: MacCormack, at para. 57. However there may be cases where examination of the linkage evidence should form part of the “similarity” decision: MacCormack, at para. 58.

m) In deciding on the admissibility of evidence of similar acts, the credibility of the evidence of similar acts is a relevant factor for the trial judge to consider in deciding on admissibility: MacCormack, at para. 54. It is up to the judge on the application to determine if the evidence meets the threshold of being reasonably capable of belief: Handy, at para. 134.

n) It is worth remembering that the search for similarities in the manner in which allegedly similar acts were committed is a question of degree. Like some other crimes, bank robbery may not show much diversity or distinctiveness, at least in the sense of a trademark or signature. Yet, the authorities allow the accumulation of significant similarities to satisfy the threshold for admissibility. Often, the probative force of an accumulation of circumstances exceeds the sum of its individual parts; MacCormack, at para. 65.

o) A microscopic approach to any dissimilarities is not appropriate. Nor is adding up the similarities and dissimilarities and then, like an accountant, deriving a net balance: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60. As Binnie J. observed in Shearing, when approaching the task with a microscope, it is always possible to exaggerate and multiply dissimilarities. Such microscopic assessments can result in a distortion based on minute differences of no particular moment: Kanagasivam, at para. 149.

p) Like the “similarity” requirement, which indicates a common perpetrator of the similar acts, a demonstrated link between the accused and the similar acts is also a precondition to admissibility (Step Two: Linkage evidence): MacCormack, at para. 59.

q) In the group context there must be more than a demonstrated link between the defendant and the group. In a rotating group environment, where no group member is said to play a distinctive role, this second step requires that the trier of fact find a “sufficient connection between the individual and the crimes of the group” by locating “independent evidence linking the accused to each crime” (emphasis added): Perrier, at para. 32; Kanathasamy, at para. 38.

r) In a rotating group environment, there is a risk that simply by virtue of membership in the group, the accused will become implicated in crimes he did not commit. To assuage this concern, Perrier instructs that a specific evidentiary connection must be drawn between the accused and the similar acts of the group. This link can be made in one of two ways: (a) through evidence that the accused played a distinctive role in the crimes; or (b) by “other independent evidence”: Perrier, at para. 25. Kanagasivam, at para. 45.

s) Once the trier of fact has determined that the same group was involved, a second step or assessment is needed in order to determine if the evidence has enough probative value with regard to the individual accused to outweigh the prejudice it will cause: Perrier, at para. 31.

t) In a rotating group environment, where no group member is said to play a distinctive role, this second step requires that the trier of fact find a “sufficient connection between the individual and the crimes of the group” by locating “independent evidence linking the accused to each crime”: Perrier, at para. 32.

u) The requirement that there be a link between the allegedly similar acts and the accused demands that there be some evidence upon the basis of which the trier of fact can make a finding that the similar acts were those of the accused: MacCormack, at para. 59.

v) The whole point of Perrier is to ensure that gang activity is not used to identify a defendant in relation to the gang's acts, unless the defendant is specifically linked to those acts. Individuals are prosecuted and not groups. Similar fact evidence should not be used to identify an individual as having taken part in a crime simply because he belongs to a group that committed the crime. As such, in a rotating group environment, with no specific roles having been played, only those similar crimes to which the accused is linked may be used to identify his involvement in crimes: Kanagasivam, at para. 75.

w) The threshold of “some evidence” is a low one: R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at para. 63. However, evidence of mere opportunity to commit the similar acts is not sufficient: MacCormack, at para. 59. The similar acts must be connected in some relevant way with the defendant and with his participation in the crime. Evidence which discloses no more than a mere possibility that the alleged similar act is the act of the accused will not suffice to render the similar fact evidence admissible: Arp, at para. 57.

x) It is not necessary to conclude that the similar acts were likely committed by the accused. The answer to this question may well determine guilt or innocence. This is the very question which the trier of fact must determine on the basis of all the evidence related to the similar acts, including of course the accused's involvement in each act: Arp, at para. 56.

y) The term “independent evidence” is not defined in Perrier. In the group context it means evidence of something other than simply membership in the group: Kanagasivam, at para. 46.

z) The balancing of probative value versus prejudice: Prejudice, includes both “moral prejudice” and “reasoning prejudice.” Moral prejudice is concerned with the potential stigma of “bad personhood,” the prospect that the verdict will be based on prejudice rather than proof. Reasoning prejudice has to do with distraction of the trier of fact, especially a jury, from their proper focus on the offences charged, aggravated by undue consumption of time by the introduction of evidence of similar acts; Handy, at paras. 100, 144 and 146; MacCormack, at para. 55.

aa) some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by a judge sitting without a jury; MacCormack, at para. 55.

Analysis

[74] Given the legal principles that apply in this case, I must begin by looking at the acts of the group of two men who committed the six robberies and assess the similarity between the acts – the manner in which the robberies were conducted. Then, since the Crown is not alleging that Mr. Lira had a distinctive role in these robberies, I must consider what if any independent evidence links Mr. Lira to participating in these robberies. Finally, I must weigh the probative value of the evidence against its prejudicial impact.

(1) Is there a sufficiently high degree of similarity between the acts to be sure on a balance of probabilities that the same group likely committed the six robberies?

[75] There first question to determine is whether there is a sufficiently high degree of similarity between the acts between these six robberies to be sure on a balance of probabilities that the same group likely committed the six robberies. In considering this issue, I have been careful to consider only what evidence is reasonably capable of belief. Since I am also the trier of fact, to the extent there are disputed facts, I have not made any final findings as that is not required at this stage. Findings on any disputed facts will only be made at the conclusion of the trial. With that in mind I turn to the “Handy” factors.

The number of occurrences

[76] The fact there were six robberies is not in dispute. Nor is there a dispute that they were all acts of violence to steal money and/or drugs. In my view the number of robberies is a sufficient number of incidents in order to assess the degree of similarity in the manner in which the acts were committed.

[77] On the voir dire, I heard evidence of three other robberies the police believed were related when these six robberies were being investigated. On this similar fact application, both counsel took the position that the evidence of these other robberies was only relevant to the Defence’s Charter application and is not evidence to be considered on the trial proper or this application. I have therefore ignored the evidence that I heard about those robberies.

Proximity in time between the robberies

[78] The six robberies occurred over a six-week period between January 19, 2018 and February 28, 2018. There was no particular pattern in the period of time between robberies. The robberies were as close together as two days apart and as far apart as ten days. There was also no pattern to the time of day these robberies were committed. Two occurred in the evening and the others occurred in the afternoon. Ms. Casey submits that I do not have evidence about how many other robberies were committed in the same general area in this time frame which is true. Nevertheless, although perhaps not a significant factor, in my view there is still a close temporal connection between the robberies given that they occurred over a short period of time.

Geographic proximity of the locations of the robberies

[79] The first two robberies occurred in the west end of Toronto – 1.18 km apart, in the Martin Grove Road and Eglinton Ave. West area of Etobicoke, close to the 401 Highway. The remaining four robberies were clustering in the same area about four to six kilometres away in east end of Toronto, in the area where Highways 401 and 404 intersect. The fact that all of the robberies have a connection to Toronto and occurred within a relatively small geographical area of Toronto – a 14.3 km² area and the fact that they were all close to Highway 401, in my view is a significant similarity.

The type of location robbed

[80] The first four robberies were of banks, and the last two were of pharmacies. Both targets obviously have cash and the pharmacies also had drugs. The evidence from those robbed in the pharmacies is that the suspects asked for drugs, namely Percocet.

[81] The position of the Crown is that the fact that there was a change in premises robbed from banks to pharmacies does not mean that this was not the same group conducting these robberies. Ms. Batorska argued that with the bank robberies the suspects were walking in blind, did not know where the cash was, and in some cases got no cash or only cash from customers. She suggested that the group decided to change targets as a result, given this difficulty. In my view that is pure speculation. The fact that the targets of the robberies changed is a dissimilarity in these robberies that I will consider.

Extent to which the other robberies are similar in detail

(a) General

[82] There are significant similarities generally in how the robberies were committed. In each of the robberies there were two suspects, and each time they executed a “take over style robbery” by coming into the location suddenly, with the gunman taking control over all persons in the premises and directing them what to do, while having his firearm in plain view and sometimes pointed at people. Suspect #2 can be seen carrying a bag into the premises being robbed in each robbery. Although, as I will come to, there are some changes in their roles, the fact Suspect #2 is the one who gathers up the items being stolen never changes in any of the six robberies. There is no evidence in any of the robberies in issue that there was a third person in a getaway vehicle.

[83] The gunman always entered first and Suspect # 2 entered after him. No shots were fired in any robbery and no one was injured in any robbery – there was no gratuitous violence. Although the gunman left the location first every time save for the second robbery the RBC-Westway robbery, there are differences in how quickly Suspect #2 followed. Usually, he was immediately behind Suspect #1, but there was a very brief delay in his leaving on two of the robberies – the CIBC-Lloyd Manor and BMO-Provost robberies. In my view how quickly Suspect #2 left and whether or not Suspect #1 left first is not significant. How they entered the premises, knowing there would be people inside, in my view, is what is significant.

[84] For each robbery the suspects were in the location for only a matter of minutes. They were in the banks for close to a minute and in each of the pharmacies for two to three minutes but of course in the pharmacies they were also stealing pills that were secured in a safe.

(b) Clothing

[85] None of the clothing worn by the suspects from robbery to robbery was the same or unique in any way. In all of the robberies, the suspects had their faces covered, and they usually were wearing something with a hood that was up. They also wore gloves in every robbery. The type of gloves changed every time.

[86] One or both suspects were always wearing a black 3-hole balaclava. This was worn by Suspect #1 every time except last robbery when he was wearing a black and grey or white face covering and what appears to be a toque. Suspect #2 wore a black 3-hole balaclava in last four robberies and different styles of balaclavas in the others or a bandana-style face covering.

[87] Ms. Casey submits that I do not have any statistics on how common a black 3-hole balaclava is and even if this was not something that Det. Nasser had seen in any robbery before. He admitted that this type of balaclava is not exclusive or unique and could be bought in any box store. It could therefore be a type of balaclava used in many other robberies which means its use in these six robberies is not a coincidence at all.

[88] However, although it is the case that Det. Nasser agreed that the presence of a 3-hole balaclava may seem very general and that a black 3-hole balaclava is not an exclusive item in any way, he stated that when you are looking at various types of robberies across the city you start to see a lot of different variations in balaclavas and masks worn across the city. He testified that in his experience, as you look at robberies across the city, not all robbers wear 3-hole balaclavas. That evidence is reasonably capable of belief.

[89] I accept that a 3-hole balaclava is readily available and therefore not unique but given the many styles available, the fact this style of balaclava was worn by Suspect #1 for every robbery save for last robbery, where it was worn by Suspect #2, is in my view a significant similarity. If the robberies were not committed by the same group, I would have expected more variation in the style of balaclavas and other face coverings such as bandanas worn by the robbers.

[90] Ms. Batorska also relies on the fact that save for the BMO-Provost robbery, Suspect #1 has a hood up over his head in most of the robberies. Suspect #1 also had a hood pulled up over his head, sometimes in addition to some form of hat underneath. That is my view is a more generic similarity for this style of robbery.

[91] There is no doubt that the use of masks and gloves in a robbery of this type could also be considered generic as Ms. Casey submits. That said, Ms. Batorska argues that the fact both suspects are always masked and wearing gloves and the fact that all clothing, including shoes and gloves, changes each time, save for the 3-hole balaclava, shows a concentrated effort to avoid detection and in and of itself is a striking similarity. Ms. Casey responds that the use of different clothing and shoes is really a significant dissimilarity that is more likely because each robbery was committed by different people.

[92] I accept that the change of clothing and shoes for each suspect in each robbery is consistent with different people doing the robberies. However, what I do find to be a significant similarity is the lack of any forensic evidence for any of the robberies, including in the locations robbed and in the stolen Hondas that were used in the robberies and recovered. This is a factor that supports the Crown’s position that the same group of people, who were being extra careful to avoid detection or leaving behind any forensic evidence, committed these robberies. If these robberies were committed by different people, I would have expected there would have been a greater likelihood that at some forensic evidence would have been left behind on at least one occasion.

(c) Body-height and weight.

[93] Det. Nasser testified that another reason he linked these robberies was that he believes the height and weight of Suspects #1 and #2, in comparison to each other, and as between the suspects in each robbery is consistent for each of the robberies, save that Suspect #2 appeared slightly heavier than Suspect #1.

[94] Although Ms. Casey argues that it is difficult to tell the body type of the suspects from the surveillance videos, she also argues you can tell some material differences from looking at those videos. She made a detailed argument, showing me stills comparing the suspects, in an effort to argue that the body type of the suspects did in fact change in various robberies. Ms. Batorska rejects this and argues that how a suspect appears on video depends on the number of layers of clothing that were worn and the angle and distance the video was taken from.

[95] I carefully considered Ms. Casey’s submissions but, in the end, cannot accept them. In my view given that bulky or puffy jackets were often worn by the suspects and given they were often wearing loose fitting clothing underneath, in addition to the difference in angles and distances from them to the cameras, means that it is really not possible to reliably conclude there are the differences Ms. Casey suggested. All I can conclude is that in each of the six robberies the suspects look roughly to be of same height and build. No major differences and nothing significant that would identify any particular person, subject to the issue of cornrows, which I will come to, is visible.

[96] In any event any differences in body height and weight would in my view not be material on their own given the fact the Crown argues that this was a rotating group and thus conceded the group composition changed depending on the robbery. As a result, if that is the case, there could be some variation of height and build of the individuals involved in these robberies.

(d) Propping the entrance door open

[97] For three of the four robberies of the banks – namely the CIBC-Lloyd Manor, the RBC-Westway, and the CIBC-Finch robberies – Suspect #2 propped open the entrance door to the bank with different articles. The first time he used a burgundy jacket, the second time a piece of cardboard and the third time, a sling/sleeve one would wear for a broken or injured arm. It does not appear that any prop was used to keep the door open for the BMO-Provost bank robbery but the door that was opened was all glass and no metal frame is visible and so it is reasonable to believe that that was the reason it was not done for this door.

[98] I find that the use of props to keep the door open is a significant similarity to connect at least the three robberies where a prop was used. Det. Nasser testified that he has seen robbers put something in the door to prevent it from closing in jewelry store robberies because in some of those stores the door is kept locked and locks automatically when opened and as a customer you need to be buzzed in and out. Det. Nasser believed the suspects were doing this to prevent being locked inside the bank. What is significant about this however is that he also testified that prior to the robberies in issue, he had never seen this before at a bank robbery or a retail robbery such as a gas station or convenience store. This evidence was not challenged. This is a significant similarity in my view when I consider what would the chances be that random people robbing banks would have the same mistaken belief and take the time to do this? I note that the fact a prop was put in the door for these three robberies also provides some connection to the bank robberies even though a rifle was used in the first and then handguns were used.

(e) Reusable Bags

[99] Ms. Batorska argued that the fact for each robbery the suspects used reusable shopping bags to put stolen cash and/or pills in is a significant similarity. I considered the appearance of those bags. Usually only Suspect #2 brought a bag into the location to be robbed although in the BMO-Provost robbery Suspect #1 had what could be a white plastic bag in his left hand. The colour of the bags carried by Suspect #2 varied save that at the BMO-Provost and CIBC-Finch robberies, which were two days apart, identical looking multi-coloured Metro reusable shopping bags were used. This does suggest these two robberies might have been done by same group or at least that Suspect #2 was the same in each robbery. The fact that a red and black Metro reusable shopping bag was used in the last robbery of the SWP becomes significant but only when considering the linkage evidence that I will come to.

[100] On this issue I accept the submissions of Ms. Casey. The use of reusable bags currently is not unique, and they are prolific in terms of style and colour. Apart from possibly the multi-coloured Metro reusable bags, different bags that are in no way distinctive were used each time. Any similarity because of the use of reusable shopping bags by Suspect #2 in my view is weak.

(f) Roles of the suspects

[101] Counsel also drew my attention to the role of the suspects during each robbery. The only similarity between the bank robberies and the pharmacy robberies is that with the exception of the RBC-Westway robbery Suspect #1 was primarily the one who maintained control of persons inside the location being robbed while Suspect #2, who brought in a bag, gathered up and put cash and drugs into the bag. Generally speaking, for crowd control, the gunman had his left arm stretched out, gave directions to people, had a firearm drawn and often pointed it at people in the location being robbed. This similarity is just an extension of the fact that in each robbery Suspect #1 had a firearm and Suspect #2 brough in a large bag.

[102] For the bank robberies, with the exception of the RBC-Westway robbery, the gunman remained in the area where customers would be in the bank while Suspect #2 went into the area behind the tellers’ counter and looked through drawers and removed any cash that he found there himself. In the RBC-Westway robbery, both men made their way behind the tellers’ counter. According to Mr. Vavryschuk, the gunman demanded the money and when he was told they did not have any they could access, took cash from two customers of the bank who were being served at the counter that they had just been given. What the gunman did in this robbery is a dissimilarity I must consider.

[103] The only other aspect of the bank robberies to consider is that for the most part the suspect with the bag simply went behind the tellers’ counter and started opening drawers and taking out cash himself rather than the suspects demanding that the employees turn cash over to them. Again, the RBC-Westway robbery is the exception as in that case the gunman repeatedly demanded where the cash was. However, in none of the other robberies of the banks was a demand made of the employees to hand cash over. Suspect #2 went to the cash drawers and removed the cash he could find by himself.

[104] Ms. Casey submitted that the actions of the gunman in the robbery of the SDM were quite distinct from the other robberies and this is true although this is perhaps less significant because there was now a change from banks to a pharmacy where the suspects were looking for both cash and drugs. This is the first time Suspect #1 actively removed cash and put it into a bag. Ms. Casey submitted that he did this at the pharmacy cash register as well although that is not what Ms. Zheng said and based on viewing the surveillance videos of this robbery very carefully that is not clear to me either although the gunman clearly did get cash from a cash register at the front of the store.

[105] Most significantly, Ms. Casey relies on the surveillance video of this robbery in support of her position that the gunman forcefully pushed the cashier with his arms and while the firearm was in his hand and that this is the only time the gunman touched someone with gun in hand. The video from the camera by the pharmacy appears to show the Suspects entering the pharmacy at the other end of the store and if I have the sequence correct, they run down an aisle that can’t be seen to the pharmacy counter. Once they come in view Suspect #1 is behind the male cashier and I presume this is when Ms. Takla thought the cashier was being held hostage. Based on the video it may be that the gunman is taking his arm to direct the cashier forward but that is not clear. It is not possible to see if he was pushing him there because of privacy panels in the pharmacy area that block the view. Once the suspects were at the front of the pharmacy counter it is possible that Suspect #1 was touching the front shirt or chest of a male cashier but again, I can’t tell. As already stated, Ms. Takla only said that they were pointing their guns at the cashier.

[106] After Suspect #1 jumps over the pharmacy counter, followed by Suspect #2 who walks behind it, they both go to the safe. The male cashier remains standing in front of the counter. Suspect #1 went to the safe area with his firearm out and then stepped back while Suspect #2 took drugs out of safe and then cash out of till.

[107] Suspect #1 then reappears on camera and it appears that he produces a yellow plastic bag – counsel advise it was a No Frills bag, but I am not able to see that. It appears to have come from Suspect #1 as the cashier did not have anything in his hand. This is likely not the first time Suspect #1 had a bag with him and was prepared to do this as a bag is visible in the BMO-Provost robbery, but it was not used in that case.

[108] Suspect #1 presumably called the male cashier over to what appears to be a cash register and gave him the plastic bag. It is not clear what happens, but I presume the cashier put some cash in the yellow bag. They can both then be seen walking away from the pharmacy counter. At this point Suspect #1 is a little behind the cashier and is not pushing him.

[109] Once they both got to the front cash register it is a little harder to see and I cannot rule out that Suspect #1 did not use some force but there is nothing obvious from the video nor is there other evidence that he did. Suspect #1 still had the gun out and at that point the yellow bag appeared again, and both Suspect #1 and the male cashier put cash from the register into the bag. A little later just Suspect #2 walked out of the pharmacy area, and shortly afterwards, Suspect # 1 can be seen again with the yellow plastic bag in his hand by the pharmacy. In fact, it now looks like he has two bags in his hand. The male cashier follows a bit behind him. Suspect #1 and Suspect #2 then run out of the pharmacy.

[110] Based on the video evidence and the fact that Ms. Takla did not testify to any force being used, I do not accept Ms. Casey’s submission that Suspect #1 forcefully pushed the cashier or touched him with his gun during the SDM robbery.

[111] In the last robbery of the SWP, Suspect #2 demanded Percocet and then took cash out of the till. Suspect #1 helped find the safe, then rounded everyone up, controlling the employees and customers while Suspect #2 took drugs out of safe. Ms. Catay however testified that the gunman also put some of the bottles of medication in his pocket.

(g) The Firearms

[112] The fact that a single firearm was used in each of the six robberies is a significant similarity that distinguishes these robberies from others. In Kanthasamy, a case where drivers or security guards were robbed of personal effects during robberies of transport trailers, the fact that a gun was used or its use was intimated in all but one robbery was considered to be a unique feature: Kanthasamy, at para. 37. Apart from that fact, there is additional evidence that the Crown relies upon in support of this application, based on the manner in which the firearm is handled in these robberies and by making a comparison to the rifle used in the first and last robbery with the rifle that was found in Mr. Lira’s possession at the time of his arrest (the “Lira Rifle”), submissions I will come to.

(i) The evidence of DC Ryan Smith

[113] The Crown called DC Ryan Smith who was qualified to give expert opinion evidence in the examination and analysis of firearms, prohibited devices and ammunition. His CV was reviewed and neither Ms. Casey nor I had any concern with his qualifications. DC Smith examined and took photographs of the Lira Rifle including the magazine and the ammunition that was found with it. His evidence that the Lira Rifle is a Simonov, SKS Russian, semi-automatic rifle, that it was operable and that it was a prohibited firearm as defined in s. 84 of the Criminal Code, R.S.C. 1985, c. C-46 because the length of the barrel and the overall length of the rifle was too short, is not disputed.

[114] By the time of the preliminary inquiry in this case in January 2019, DC Smith had examined over twelve SKS rifles although none were sawed-off like the Lira Rifle. He gave evidence generally about the FRT Report and Certificate of Analysis that he prepared, the SKS style rifle as manufactured and the aftermarket parts that can be purchased for it and also evidence about the Lira Rifle and handguns generally. He was also asked to comment on the firearms as they can be seen in the surveillance videos from the robberies. His evidence can be summarized as follows.

[115] DC Smith testified that the SKS rifle, as manufactured in Russia, as it left the factory, would have been a non-restricted rifle in Canada. It was manufactured in Russia in the millions until 1955 and is still being manufactured in China. DC Smith testified that this kind of SKS rifle was produced in the millions by various firearms manufacturing plants and they are still seen today. It is not a unique firearm.

[116] Photographs of how the SKS rifle would typically look as it left the factory were included in the FRT Report. Using these photographs DC Smith pointed out where the magazine that holds the ammunition is located. As it left the factory the magazine would be integral and hinged to the rifle. The end of the barrel of the rifle there is a protrusion at the top which is a sight and DC Smith pointed out that there is a rear sight as well, just in front of the bolt carrier. Underneath the barrel of the rifle, between the front and rear sights, is a mount for a bayonet. The photograph of the rifle as it would typically look as manufactured shows a long wooden butt stock, which is what DC Smith described as a paddle shape at the end of the rifle, past the trigger, that would typically rest against someone’s shoulder when the rifle was being operated to steady the rifle to make an accurate shot and absorb the recoil. DC Smith pointed out from these photographs that the entire area of the bolt carrier on the top of the rifle, including the bolt carrier knob, as manufactured, would be the original silver bare metal. The bolt carrier has a protrusion on the right-hand side of the barrel and this knob is what the user can use to manually chamber a cartridge into the chamber of the rifle. I note that in these photographs of the SKS rifle as manufactured, the barrel and other parts near the bolt carrier, such as the receiver cover, are black.

[117] As manufactured the SKS rifles are gas operated which results in the rifle being a semi-automatic weapon. However, the user needs to pull the trigger every time they want to discharge a shot. DC Smith believes that the reason the Lira Rifle operated as a single shot rifle was that the barrel had been cut down, resulting in it no longer being operable as a semi-automatic weapon.

[118] DC Smith testified that a SKS rifle could be finished with a ceracoat finish or treated in the aftermarket to make it all black. Most common is chemical surface protectant called “bluing”. In 1951 when the Lira Rifle was manufactured, DC Smith did not expect it was possible that it was manufactured as an all-black rifle.

[119] DC Smith admitted that there are various components of any rifle that can be modified by buying aftermarket attachments that change the way the rifle will look from how it was manufactured. When he was asked if that included changing the length of the barrel, DC Smith testified that aftermarket barrels can be purchased but he does not know if that can be done for a SKS rifle. DC Smith testified that he does not know that much about what is available for a SKS rifle specifically and that he had not researched this but admitted that aftermarket butt stocks can be purchased, that one can alter the grip and that pistol grips are common. It is possible to obtain a pistol style grip without a butt stock, but such an aftermarket part would not be legal in Canada. You can also purchase a grip that has a telescoping or folding butt stock that you pull out when you want to fire the rifle and otherwise collapses or folds down. In other words, you do not have to cut the butt stock off to get a pistol style grip with no butt stock.

[120] DC Smith reviewed the photographs that he took of the Lira Rifle. He pointed out the various markings and serial numbers on the Lira Rifle that are consistent with a SKS rifle as manufactured. He testified that instead of a wooden butt stock, the Lira Rifle is fitted with an aftermarket composite black plastic stock that includes the pistol grip. The curved pistol grip, similar to a grip of a pistol, is located just behind the trigger. A pistol grip of this style is not exclusive to the SKS rifles. DC Smith said that a plastic stock is not unusual in his experience. The plastic is lighter and gives the rifle a more tactical look. It does not change the classification of the rifle. All the metal parts of the firearm remain the same – it is literally replacing wood with plastic. DC Smith also testified that the way the curved magazine of the Lira Rifle looks is not exclusive to a SKS rifle. In other words, although curved magazines are manufactured to fit a particular type of rifle there would be other magazines that look like this that fit other types of rifles. In his opinion, such a magazine is quite common. If purchased in Canada legally, so that it is not a prohibited device, it would have a pin to prevent it from holding more than five rounds. The Lira Rifle did not have such a pin. DC Smith could not say from looking at the surveillance of the CIBC-Lloyd Manor or the SWP robberies if the rifle used in either of those robberies had a pin although the magazine itself looks similar to the one for the Lira Rifle.

[121] DC Smith observed that the metal portions of the Lira Rifle, namely the barrel, the gas chamber, the bolts and bolt carrier, and the trigger had been painted black. He pointed out in the photographs that you can see that when the paint dried there were paint runs which is not typical. DC Smith is unable to say when the Lira Rifle was painted although he pointed out areas of the bolt carrier where you can see wear marks where the paint had begun to wear off, exposing the bare silver coloured metal underneath, because this is the part that moves rear and forward to extract the chamber and load a new round which results in metal-on-metal wear. The areas of wear show the metal as it would have looked as manufactured.

[122] DC Smith testified that the barrel of the Lira Rifle had been sawed off at the gas chamber, removing the front sight and the bayonet mounting point. He is unable to determine when this was done. DC Smith pointed out the saw marks and the small lip on the end of the barrel that suggests it was not cut all the way through and that that part of the barrel there simply broke or was bent off. The end of the barrel is not smooth and in his opinion the barrel on the Lira Rifle did not leave the factory like this. That in my view is an obvious conclusion based on its appearance and I agree with his observation. I would add that this was clearly not an aftermarket barrel of that length.

[123] DC Smith pointed out that the butt stock of the Lira Rifle had also been cut short – what he called the butt plate had been cut off but again he could not say when this was done. Photographs of this end of the Lira Rifle show that it was clearly not manufactured this way as there are several places where deep cuts were made at different angles that do not go all the way through the butt stock, presumably failed attempts to cut it all the way through at those points – as DC Smith said it was butchered. DC Smith testified that typically the butt stock would continue and have a paddle shaped piece that would look like the wooden one as shown on the typical SKS rifle as manufactured. In cross-examination he admitted that although he expected to see a butt stock that looked like the picture of the SKS rifle as manufactured in the FRT Report, he did not believe he looked up what the aftermarket butt stocks for this rifle would look like and he had not done research on all of the aftermarket attachments or modifications available for a SKS rifle. Later he did admit that it was possible to buy a pistol grip without a butt stock.

[124] Ms. Batorska asked DC Smith for his opinion as to why someone might cut the barrel of a rifle to make it shorter and there was no objection. He answered that if committing a robbery, you want to conceal the rifle as much as possible when you are walking in and a shorter barrel and no butt stock allows for more maneuverability in tight spaces. In cross-examination he admitted that if concealability is the concern, then the smarter option if one has a handgun as well is to use that as it is obviously smaller than a larger rifle. In re-examination DC Smith testified that a rifle might be chosen for the purpose of intimidation if committing a robbery so that you appear as intimidating as possible without firing the gun and if you need to use it, it is typically more powerful and more accurate than a handgun. I have not relied on this opinion and do not intend to in the trial proper as DC Smith was not qualified to give this type of opinion although I would say that DC Smith gave the answers one would expect as the possible reason for modifying a rifle in this way.

[125] Photographs of the underside of the Lira Rifle show that it does not have the integral magazine that would typically be found on the SKS rifle as manufactured. The magazine for the rifle as already stated was found in a separate compartment of the suitcase along with 17 bullets. It was photographed and although I do not have the measurements, I would say it is about two inches wide and about five inches long on the outside edge and it is slightly curved. DC Smith examined it separately from the rifle and testified that this magazine is a detachable box style magazine that would go into the void where the integral magazine would have been and lock into the bottom of the rifle. It is a high-capacity magazine capable of holding 19 rounds of ammunition making it a prohibited device.

[126] When DC Smith test fired the Lira Rifle with one of the seized rounds and three rounds of stock available for the test fire, he determined that it was operational, but it did not cycle properly and operate as a semi-automatic weapon by automatically discharging a round and loading a new cartridge. Instead, after he pressed the trigger, he had to manually pull the knob on the bolt carrier back to extract the spent casing and load the new cartridge. His belief as to why is that the gas pressure was not enough given the barrel length had been shortened but he admitted that he is not a ballistics expert. The Lira Rifle operated as a single shot or bolt action rifle.

[127] DC Smith testified in cross-examination that a silver or grey colour for a handgun is quite common and that there is quite a range of finishes for handguns depending on the manufacturer. Silver is a common metal colour and could be the colour of a steel or chrome handgun. He could not guess the number of manufacturers of silver or grey handguns because it is that high a number. In the videos where a handgun was used, DC Smith was not able to see any identifiable stamped or engraved features. He admitted that in the four robberies where silver or grey handguns were used it is possible that they were all different handguns. He could not say for sure.

[128] DC Smith was shown the various surveillance videos of the robberies and asked questions by both counsel about what he could observe about the firearms. Some of that evidence is of assistance given DC Smith’s expertise but much of it is subject to what I can observe on these videos as I will be the ultimate trier of fact. The evidence that DC Smith gave with respect to these videos is as follows:

a) CIBC-Lloyd Manor robbery

[129] With respect to the firearm used in this robbery, based on his review of the surveillance video, DC Smith testified that it resembles a SKS rifle. It has a front sight and the mount for the bayonet although there is no bayonet attached. Since the gunman was holding the rifle in his left hand the grip is exposed and you can see the pistol style grip. This rifle does not have a butt stock, but the stock is black in colour. It appears to be affixed with a high capacity long curved magazine with the length to hold numerous rounds of ammunition similar to one on the Lira Rifle. The bolt carrier appears to be silver or grey in colour but otherwise looks similar to the one on the Lira Rifle. The only dissimilarity DC Smith noted between this rifle and the Lira Rifle was that the barrel length in the Lira Rifle had been modified.

[130] In cross-examination DC Smith admitted that in the video surveillance of this robbery you can see that the entire assembly of the bolt carrier is silver including the bolt knob, from the front of the magazine to the trigger. He also admitted that the length of the silver portion of the bolt carrier of the Lira Rifle is considerably shorter than the rifle seen in the CIBC-Lloyd Manor robbery.

b) RBC-Westway robbery

[131] DC Smith described the handgun carried by the gunman in this surveillance video as appearing like a silver semi-automatic style handgun because he could see the frame and the slide that travels rearward after firing a round. During a portion of the video DC Smith testified that the firearm was in the right hand of the gunman and it appears that the hammer on the firearm is cocked to the rearward position meaning the firearm was ready to be discharged. He described this as being a double action firearm meaning you can move the hammer rearward to have less of a trigger pull. DC Smith was unable to observe any markings on the firearm.

c) BMO-Provost robbery

[132] DC Smith described the handgun carried by the gunman in this surveillance video as a silver or grey semi-automatic handgun that he was holding in his right hand. He explained what he saw in certain images in support for his belief that the hammer appears to be cocked to the rearward position. On this video when gunman entered and he was holding the gun sideways, DC Smith pointed out where you can see an ejection port on the right-hand side of the firearm where a casing would be ejected. This shows that the inside of the barrel of this handgun is black but that difference in colour between the inside of the barrel and the outside of the handgun is not unique. DC Smith was unable to observe any markings on this firearm.

[133] DC Smith testified that both the handgun in this case and the one used in the RBC-Westway robbery look similar and appear to be of a similar design but without seeing any markings or stampings he cannot say for sure.

d) CIBC-Finch robbery

[134] DC Smith noted again from the video surveillance that the gunman was carrying a silver or grey semi-automatic handgun in his right hand, but he could not see any markings and he commented that the quality of the video is not great. He is therefore not able to say that it is the same handgun as used in the other robberies although it looks similar.

e) SDM robbery

[135] DC Smith noted again from the video surveillance that the gunman was carrying a silver or grey semi-automatic handgun in his right hand, but he could not see any markings and he commented again that the quality of the image is not great. He is therefore not able to say that it is the same handgun as used in the other robberies although it looks similar.

f) SWP robbery

[136] Based on the surveillance video, DC Smith testified that the rife used by the gunman during this robbery appears to be a black rifle with high-capacity curved magazine, a pistol style grip without a butt stock, and shorter barrel with no front sight or a bayonet mounting bracket, all consistent with the Lira Rifle. He did not see any dissimilarities from the Lira Rifle, but he could not say for sure because of the quality of the video and the absence of being able to see any of the markings on the rifle.

[137] When asked to compare the rifle used in this SWP robbery and the CIBC-Lloyd Manor robbery, DC Smith pointed out the similar characteristics save for the barrel length. With respect to the bolt carrier, DC Smith did not note anything about the bolt carrier in the video of the SWP robbery. Apart from the barrel length, he did not note any dissimilarities.

[138] In cross-examination DC Smith admitted that it was possible that the pistol grip on both rifles did not have a butt stock. He could not see from the video if the butt stock had been cut off on either of them. He also admitted that he could not say if these rifles were SKS rifles, AK47 or any other type of rifle. He could not see any stamping or serial number for either of the rifles in these robberies.

[139] As I will come to this evidence becomes important to the evidence Ms. Batorska relies upon in support of her argument that there is evidence linking Mr. Lira and the Lira Rifle to the CIBC-Lloyd Manor and SWP robberies. Ms. Casey however submits that in the absence of the recovery of either of those firearms it is not possible to conclude that the rifle was the same in each of the two robberies or that it was the LIRA Rifle.

(ii) The change in the type of firearm

[140] Ms. Casey relies heavily on the fact that a rifle was used in the first and the last robbery and a handgun was used in the others. Ms. Batorska argues that the reason for this change in the firearm is that after the first robbery it became apparent to the suspects that the rifle could not easily be concealed and so it was reasonable to modify it, which they did by the time of the last robbery. In answer to my suggestion that this theory was entirely speculative, Ms. Batorska submits that I can work backwards, starting with the rifle found on Mr. Lira when he was arrested and comparing it to the rifle with a short barrel used in the SWP robbery on February 28. In this way I can conclude that they are the same.

[141] In support of this submission Ms. Batorska argues that Mr. Lira was seen with a black suitcase less than an hour after the February 28 robbery, which suggests he was concealing the rifle on February 28 since when he was arrested on March 1, the Lira Rifle was in a black suitcase. If I find that the Lira Rifle was used in the SWP robbery, then the difference in appearance in the rifle from the rifle seen in the first robbery is easily explained because we know the Lira Rifle was modified and had been painted black. She argues that when the barrel of the rifle in Mr. Lira’s possession was sawn off, the rifle was also painted. She acknowledges that the rifle seen in the first robbery was likely not painted as the bolt carrier and bolt knob appear to be in their original metallic condition which is consistent with how a SKS rifle is manufactured. The bolt carrier on the rifle seen in the last robbery on February 28, does not appear to be silver. Her theory continues that a handgun was used for four of the robberies while the rifle used in the first robbery was being modified.

[142] Although the Crown’s theory is certainly plausible, in my view even working backwards, it is too speculative. I will have to make some findings of fact on these issues at the conclusion of the trial but for the purpose of this application I find that the change in the type of firearm from a rifle to a handgun in and of itself is a significant dissimilarity. That said, if the other connections between the robberies are strong, it may be that this change in firearm does not exclude my finding that it is likely that the same group of men committed these robberies, particularly, as I will come to, there are significant similarities in the manner in which both the rifle and handgun were handled.

(iii) The Rifle

[143] For the purpose of this application, I was asked to just compare the rifle used in the first and the last robbery to determine if the Crown’s theory that the two rifles were the same rifle save that by the last robbery the rifle had been modified by cutting off the barrel and painting it black is reasonably capable of belief. Ms. Casey submits that the evidence of DC Smith that it is possible to buy aftermarket parts could explain why these rifles look the same. In addition, she relies on the fact that according to DC Smith, millions of these SKS rifles have been manufactured.

[144] Although it may be possible on the evidence of DC Smith to buy an aftermarket barrel for a SKS rifle, given it is a gas-powered rifle and on the evidence of DC Smith the length of the barrel is important for the operation of the rifle, it seems more likely that the barrel of a SKS rifle would not be made as short as it appears in the SWP robbery unless it had been modified.

[145] As I have already stated, Ms. Batorska acknowledges that the rifle seen in the first robbery was likely not painted as the bolt carrier and bolt knob appear to be in their original metallic condition whereas in the last robbery that area does not appear as large although what appears to be some bare metal does show in the video. It was however otherwise entirely black. This is a potential difference between the two rifles but otherwise they appear identical in a number of respects. Based on the video evidence the appearance of the fact there is no butt stock, the angled end of the rifle that ends just past the pistol grip, the location and appearance of the pistol grip and the wide, curved magazine all look identical for both rifles. The only difference is the amount of metal showing on the bolt carrier and the fact the barrel of the rifle used in the February 28 robbery was short.

[146] I appreciate that I am not able to tell if the rifles are in fact the same but that is not my task in this application. I appreciate Ms. Casey’s point that millions of these SKS rifles were manufactured and that DC Smith could not even say for certain that the rifles used in the first and last robberies were SKS rifles but in my view, the fact there are a number of characteristics of both rifles that appear to be identical, and that likely these are all aftermarket parts that modified these rifles, provides enough similarity that it could reasonably be believed that the rifle used at first robbery is the same rifle that was used in the last robbery, save that the rifle in the last robbery had been modified. Certainly, I would not say that these are necessarily different rifles such that the proposition that these two robberies were committed by the same rotating group is ruled out. Whether or not they were in fact the same rifle is to be determined at the conclusion of the trial.

(iv) The Handgun

[147] The appearance of the handgun in the four robberies where one was used, based on the surveillance video evidence, is the same throughout: a sliver or grey handgun. DC Smith however testified that although the handguns all look similar in these robberies, the colour silver or grey is very common and he could not even estimate how many are manufactured given it was such a high number.

[148] Ms. Casey argues that since none of the firearms were recovered and given the sheer commonality of this type of handgun one cannot say that the same handgun was used in each robbery. DC Smith agreed that he could not say that they were in fact the same.

[149] However, looking at the way in which the handgun was handled in each robbery, there are similarities. In some of those robberies the gunman can be seen taking the handgun out of the front right-side waist/pocket area as he enters the bank, and he can be seen putting it back into the front right-side waist/pocket area as he exits. This in and of itself may not be significant as it likely simply means that the gunman on each of these occasions is right-handed. However, the fact that the gunman keeps the gun in the same place, to extent that this can be seen, when considered with the manner in way the handgun is held, a fact I will come to, in my view supports that it is reasonably capable of belief that it is the same handgun in each of the four robberies. This evidence suggests that it might be the same gunman, and I would not expect that that person would change the actual handgun used in each robbery.

(v) Manner in which the Firearm is held

[150] As I have already stated, for the robberies where a rifle was being held, the gunman held the rifle with his right hand on the pistol grip and for the other robberies where the gunman had a handgun it was also held in the right hand. That, as I have already said, just means the gunman in each case is likely right-handed which on its own is not that significant.

[151] DC Smith was not asked by either counsel about the manner in which the gunman held the firearm. However, Det. Nasser testified that the manner in which the gunman held the firearm was relevant to him because based on what he has learned about firearms, his experience with firearms, and what he has observed in past robberies, a person typically holds the gun straight up and down, with their hand in the position one would if shaking someone’s hand. Numerous times in the video surveillance and the stills of each of the robberies, save the SWP robbery, Det. Nasser pointed out that Suspect #1 was holding the firearm, be it the rifle or the handgun, pronated or pointing down, which is not normal in his experience from observing other robberies. Based on my own observations, I agree with that description. The rifle in the first robbery and the handgun in the four robberies was almost sideways at times when it was being pointed at people in the location being robbed. I do not recall if Det. Nasser commented on how the gunman was holding the rifle in the SWP robbery. The video of that robbery is not as clear, but at one point in the stills introduced by Ms. Batorska, when gunman has the rifle up and is pointing it at someone who appears to be seated, the left side of the rifle can be seen, suggesting that he had his palm up, not pronated down.

[152] Ms. Casey submits that Det. Nasser is not an expert and this evidence just means that gunman does not carry a firearm in the way Det. Nasser has experienced. It is her position that police officers would be trained in the most effective way possible and that this does not mean someone else would not hold a firearm differently. She submits that turning your wrist is not unique and that this is not an identifying feature. However, when Det. Nasser gave this evidence Ms. Casey did not object although I appreciate that at that point, he was testifying to what he believed as part of his grounds for arresting Mr. Lira.

[153] In my view whether the fact that the gunman held the firearm in each robbery in a pronated fashion is not normal or not, the fact that the firearm in these robberies, be it a rifle or handgun, was held in this way when it was pointed at people is a strong similarity between the six robberies.

(vi) Use of the firearm

[154] As I have already stated, one common fact for each of the robberies is the use of the firearm, be it a rifle or a handgun. In each case, at some point during the robberies, the firearm was pointed at some of the people in the places being robbed. Although in a couple of the robberies the handgun was cocked, it was never discharged. In my view these facts are also significant similarities between all six of the robberies.

(vii) The Vehicles

[155] Ms. Batorska submits that the use of stolen older model Honda Civics, mainly from North York and many from 13 Division, is a connection between some of the robberies and is a striking similarity. Ms. Casey disputes this and submits that there is only direct evidence that one stolen Honda Civic, ARZY313, was used and that was in the BMO-Provost robbery. That vehicle was seen at the scene by an eyewitness and it was found on the same day only 125 metres from the bank with engine running.

[156] I have already reviewed the evidence related to vehicles observed by eyewitnesses when I reviewed the relevant evidence in connection with each robbery. I will now consider that evidence to see if there is support for the Crown’s position. Again, I will consider if it is reasonably capable of belief that a particular vehicle was used in a particular robbery as alleged by the Crown. Whether or not I might find that as a fact is a matter to be considered at the end of the trial.

[157] With respect to the CIBC – Lloyd Manor robbery on January 19, 2018, as I have already set out, Ms. Bhatt was working as a teller. She saw a very old four door model vehicle with lights on when robbers left. There is no video evidence of this vehicle and it was dark outside, and Ms. Bhatt made her observations from inside the bank. She did not get a licence plate and was not able to testify about the make of this vehicle. It is true, as Ms. Casey submits, that there is no evidence to suggest this vehicle was a Honda Civic, let alone a stolen Honda. However, there is evidence that there was an older model four door vehicle that was used as a getaway vehicle and so this evidence does not mean that this was not possible. In other words, in my view this is not a dissimilarity that I must consider.

[158] With respect to the RBC – Westway robbery on January 29, 2018, as I have set out, Ms. Batorska’s position is that a silver four door 2000 Honda Civic, CDDR919, stolen from out front of 61 Ladbrooke Road (“Honda CDDR919”) was used in this robbery. I have already summarized the evidence in support of this position that this was a stolen vehicle and the Defence admissions with respect to this vehicle. I have also already reviewed what the Tim Hortons and Callowhill videos show. The Tim Hortons video is particularly important because it shows a silver vehicle passing in the plaza by the RBC. Ms. Casey submitted that you cannot see colour of what the passenger in Tim Hortons video was wearing and even that if colour can be seen that this person was in the driver’s seat and in any event, there was another person in the bank at the time wearing a red jacket. She also argues this this is a very common looking car, and that this plaza was busy.

[159] These are all considerations for the end of the trial, but I do not accept them on this application. The Tim Hortons video is somewhat fuzzy and you only see the silver car briefly, but you can see the red of what appears to be the passenger in the front passenger seat was wearing on their upper body as the car goes by. Even if that is the driver, this does not impact the Crown’s position. You can also see the shape of car as well as the style of hubcaps and the middle horizontal trim on the side, in matching the paint colour and the shape of the side mirrors on the silver car in the Tim Hortons video and all of these are virtually identical to Honda CDDR919. For these reasons, I find that there is credible evidence from which it can be reasonably believed that Honda CDDR919 was used in the RBC ­– Westway robbery.

[160] With respect to the BMO ­– Provost robbery, I have already set out the admissions of the Defence with respect to the stolen Honda ARZY313 and the evidence of Mr. Razzaque, the Financial Services Manager employed by the BMO who was in the bank at the time of the robbery and was able to get the plate number of ARZY313 for the getaway vehicle. In my view given the evidence of Mr. Razzaque and the circumstances surrounding how this vehicle was found, the Crown’s position that this vehicle was used in this robbery is certainly reasonably capable of belief.

[161] For reasons I gave in my Charter Ruling, and those already set out herein, the Crown’s position that a green older model Honda was used in the bank robbery at Finch Ave. is reasonably capable of belief. Although it is not possible to identify the particular vehicle or find that it was stolen, as the licence plate was never visible, there is evidence from Jenny Liang, who was working at the front reception desk in the CIBC at the time of the robbery, that the suspects left in an old green car and as already stated, Det. Nasser was able to identify this vehicle based on what can be seen in the bank surveillance video and an older model Honda Civic. Although no stolen vehicle was ever recovered, this does not mean that this particular vehicle had not been stolen. For that reason, in my view this is not a dissimilarity that I must consider.

[162] With respect to the SDM robbery on February 12, 2018, I set out the evidence about the vehicle observed by the eyewitnesses at the scene, namely Mr. Kuzniak, Ms. Anstey and Ms. Deepnarine in my Charter Ruling. I have also already set out the Defence admissions about Honda AYHJ014 which confirm what Det. Nasser believed during the investigation of this robbery.

[163] In addition to their earlier submissions on the Charter application, Ms. Batorska points out that the damage to Honda AYHJ014, which is visible to the front driver’s side of the bumper of the vehicle, is consistent with the evidence of what Ms. Antsey saw, save that she must be mistaken as to which way the vehicle was facing. The other witnesses are consistent that the vehicle would have been facing her and it seems that she must have been mistaken in this regard. What she described is certainly consistent with what can be seen in the photos of the recovered vehicle and is not something one would expect to see. Ms. Casey submits that Mr. Kuzniak was only witness who saw the entire vehicle. She argues that if the other witnesses saw what he referred to as a gold stripe that they could have thought the vehicle was gold. The problem with this submission is that Mr. Kuzniak said the stripe was white. Furthermore, the witnesses saw the vehicle from the front where according to Mr. Kuzniak there was no stripe.

[164] For these reasons, in my view the position of Ms. Batorska that stolen Honda AYHJ014 was the vehicle used in this robbery is reasonably capable of belief.

[165] Finally, turning to the robbery of the SWP on February 28, 2018, no vehicle was seen presumably because the suspects came in through a back entrance. Both Ms. Takla and Ms. Catay agreed that the two men came into the pharmacy through a back entrance. Ms. Takla testified that they came in the back entrance which she said is towards the garage. Ms. Catay’s evidence was that they came from the back entrance that leads to a parking lot. It is not clear to me whether Ms. Catay was referring to a garage but either way it is possible that the men drove to the back entrance and came into a garage in a vehicle. We simply do not know.

[166] The evidence we do have is that Mr. Lira was observed by MSS officers loitering at the back of Honda AYHJ014 about 40 minutes after the SWP robbery when the car was seen parked at 490 Bathurst St. at 3:55 p.m. Furthermore, no one else was seen going into that car save for Mr. Lira and Mr. Snider, from the time it was first observed before Mr. Lira was seen at the back of it until it was seized by police. It is admitted by the Defence that a sealed bottle of Concerta was found under the front passenger seat of this vehicle by police and that it did not belong to the registered owner of the vehicle. Ms. Takla confirmed in her evidence that this bottle of Concerta was stolen from the SWP on February 28, 2018. There is therefore no doubt that Honda AYHJ014 was connected in some way to this robbery. I appreciate that this does not necessarily mean that it was driven to and from this robbery but that is certainly a fact reasonably capable of belief when considered with all of the other evidence with respect to this robbery and the observations by MSS officers of Mr. Lira after this robbery.

[167] For these reasons, I find that the use of stolen Honda Civics in at least four of these robberies is reasonably capable of belief. This in and of itself is a very striking similarity, not only because they were stolen but also because they were older model Honda Civics. Furthermore, the use of a stolen Honda Civic in the first robbery is possible and it is certainly reasonable to believe that the stolen Honda Civic used in the SDM robbery has a connection to the last robbery of the SWP.

[168] Added to this similarity is the fact that there is a pattern of punching the ignition on all three recovered Hondas (CCDR919, ARZY313 and AYHJ014). Det. Nasser’s evidence that this is something that is done to the outside of the ignition and is an easy way to start older cars that do not used a chipped key was not challenged and this in my view is another strong connection.

[169] There is also the fact that these Honda Civics were stolen from the same general geographic area of North York. As Ms. Casey pointed out however, the manner of disposal of these vehicles is not the same. For the RBC – Westway and BMO – Provost robberies, the vehicles were found running and they appear to have been abandoned immediately after the robberies. With respect to Honda AYHJ014, it was used in the SDM robbery, but it does not appear to have been abandoned as it may have been used again in the SWP robbery. At the very least, it was still being used six days after the SDM robbery. I agreed with Ms. Casey that this is a dissimilarity that I must consider.

Any distinctive features unifying the various incidents

[170] There are no distinctive features unifying the six robberies apart from those similarities I have already referred to.

Intervening events

[171] There were no intervening events that should be considered.

Any other factor that tends to support or rebut the underlying unity of the acts.

[172] I have already set out all the factors that tend to support the underlying unity of the robberies. There are however facts that must be considered that may rebut the underlying unity of the robberies that I have already set out that I must consider.

(i) Change in target from bank to pharmacy

[173] The change in target of the places robbed from banks to pharmacies is important. But in the pharmacy robberies, the robbers were looking for medications and cash, not just medications.

(ii) Change in type of firearm

[174] The fact that the firearm used in the robberies went from a rifle to handguns and then a rifle with a short barrel is potentially a significant dissimilarity. But the fact remains that a single firearm was used in each case which in and of itself is unique, plus it was pointed at people but never discharged in each case and the unusual manner in which both the rifle in the handguns were held to the extent that can be observed provides some connection between these robberies to a group. Furthermore, the fact that a prop was used in three of the bank robberies to keep the door open and in one of those robberies a rifle was used and in the other two a handgun was used provides some connection between these robberies despite the change in the type of the firearm.

[175] Furthermore, the use of stolen Honda Civics in at least four of these robberies is a striking similarity that connects these robberies, especially when also considering the fact that in the three vehicles recovered the ignitions has been punched. In addition, the use of stolen Honda AJHJ014 in the robbery of the SDM where a handgun was used and the connection between that vehicle and the SWP robbery provides some connection between two pharmacy robberies.

[176] I appreciate, as I have said, that the manner of disposal of the stolen vehicles is not the same. However, in considering the evidence with respect to the use of stolen Honda Civics as a whole, this dissimilarity in my view does not rebut the stronger connections between the stolen vehicles and these robberies that I have already referred to.

(iii) Changes in the role of Suspect #1

[177] As already stated, in both the BMO – Westway robbery and the SDM robbery the gunman demanded cash and actually took cash which is quite different from the other robberies when he stood by doing crowd control while Suspect #2 gathered up the stolen cash and drugs. However, when comparing the two pharmacy robberies, the gunman’s role was not that different.

[178] There was a significant difference in the role of the RBC – Westway robbery but in my view these types of dissimilarities although important, do not trump all the significant similarities in the roles of the suspects. In fact, given the position of the Crown, any of the isolated dissimilarities I have considered could well be as the result of the fact the robberies are alleged to have been committed by a rotating group in which case one would expect some differences as a result of different members of the group participating in different ways in different robberies. The fact remains that there are numerous similarities across the counts, some of which I have found particularly striking. These types of difference do not mean that Mr. Lira did not otherwise participate in these robberies or that they were not committed by the same rotating group.

[179] Ms. Casey also submitted that the actions of the gunman in the robbery of the SDM were quite distinct from the other robberies. As already stated, after carefully reviewing the surveillance video of this robbery I am not able to conclude that much if any force was used by the gunman. Without that, the role of the gunman in the two pharmacy robberies is not that different. In my view the fact the role of the gunman in the pharmacy robberies as compared to the bank robberies, with the exception of the RBC-Westway robbery, is perhaps less significant is likely because in the pharmacy robberies the suspects were looking for both cash and drugs. Furthermore, as Ms. Batorska submitted, the based on the videos the size of the SDM appears considerably larger than the banks that were robbed or the SWP. That could explain a more active role for Suspect #1 since the evidence is clear that they were always in a hurry trying to get in and out as quickly as possible.

(iv) Honda AYHJ014

[180] Unlike the other stolen Hondas used in these robberies, as already stated, Honda AYHJ014, was used in the SDM robbery, but it does not appear to have been abandoned as it may have been used again in the SWP robbery. At the very least, it was still being used six days after the SDM robbery when it was seen being driven by Mr. Lira shortly after the SWP robbery. I agreed with Ms. Casey that this is a dissimilarity that I must consider. Given all of the other similarities however, I am not persuaded that this dissimilarity is such that it rebuts the fact that these robberies were likely committed by the same group.

(v) Other dissimilarities

[181] I have considered most of the dissimilarities pointed out by Ms. Casey. As for the other differences that she relies on, in my view they are too microscopic. In Shearing, at para. 60, Binnie J. stated: “The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied.”

Conclusion on the degree of similarity

[182] It is true, as Ms. Casey argues and as I have reviewed, there are dissimilarities between the six robberies. In considering these, however, I must consider what my task on this application is. At this stage, as stated by Nordheimer J.A. in Kanthasamy, at para. 40:

[…] The proper approach is whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actors. I have no difficulty in agreeing with the trial judge that, in this case, they are. The likelihood that these robberies occurred randomly at the instance of entirely different individuals, or groups of individuals, is remote. As Binnie J. noted in R. v. Handy, 2002 SCC 56, [2002 2 S.C.R. 908, at para. 45: “Coincidence, as an explanation, has its limitations.” [Emphasis added.]

[183] The other consideration in determining whether the similarities are sufficient is the fact that these are robberies committed during the daytime when the banks and pharmacies were open. As Watt J.A. stated in MacCormack at para. 65, some crimes like bank robberies may not show much diversity or distinctiveness, at least in the sense of a trademark or signature. One expects someone going into a bank to wear a mask and gloves to avoid being identified or leaving fingerprints.

[184] Having considered the cumulative effect of all of the similarities, which are significant in number, and given some of them I would say are striking, in my view despite the dissimilarities I have referred to between some of the robberies, I find, particularly when considering that these types of robberies are crimes often highly similar in nature, that I am satisfied that they were likely committed by a rotating group of two persons. The likelihood that these robberies occurred randomly at the instance of entirely different individuals, or groups of individuals, is in my view remote.

[185] For these reasons, I am satisfied on a balance of probabilities that these robberies are sufficiently similar to conclude that they were committed by the same group, with rotating members committing each of the robberies.

(2) Is there some evidence linking Lira to each robbery?

[186] I turn then to the second step I must undertake: is there some evidence linking Mr. Lira to the robberies he is charged with? Ms. Batorska’s position is that although this was a rotating group, Mr. Lira was Suspect #1 in each of the six robberies – the one holding the firearm. She acknowledges that since the Crown is not alleging there was any particular distinctiveness in his role that she needs to establish, there is some evidence upon which the trier of fact could find that the alleged similar acts are those of Mr. Lira, in other words a link between Mr. Lira and the person with the firearm in each of the robberies: see Kanagasivam, at para. 23.

The evidence from Mr. Lira’s cell phone

[187] Before turning to the individual robberies and considering the evidence the Crown relies upon for linking Mr. Lira to each robbery, I will review the technical evidence concerning Mr. Lira’s cell phone as Ms. Batorska relies upon certain text messages and Google Maps found on that phone in support of her position that Mr. Lira is linked to these robberies.

The technical evidence of DC Morden with respect to Mr. Lira’s cell phone

[188] It is admitted that the Samsung cellphone that was seized from Mr. Lira at the time of his arrest on March 1, 2018 belonged to Mr. Lira. Although there was no formal admission that Mr. Lira was the actual user of this phone, I have no doubt that he was given the content that it contained and other facts that were admitted concerning this phone.

[189] The Crown called DC Todd Morden, a Forensic Analysist from the Intelligence Division Technological Crime Unit, (“TCU”) to explain his forensic examination and analysis of the evidence stored in electronic format on Mr. Lira’s cellphone. Before hearing from DC Morden, I had to deal with a threshold issue as to whether his evidence would be admissible and if so on what basis. Ms. Casey objected and submitted that DC Morden was really being called as an expert witness to give opinion evidence and that he should be qualified as an expert before testifying. Ms. Batorska’s position was that DC Morden has special knowledge in this area and that he would give technical evidence as to facts based on his knowledge and that his factual evidence should be admitted without requiring that he be qualified as an expert. This issue crystalized during the trial in part because the Defence had issues with DC Morden being qualified as an expert witness.

[190] I heard submissions from counsel and reviewed the relevant case law including R. v. Hamilton, 2011 ONCA 399; R. v. Collins, 2001 CanLII 24124 (Ont. C.A.); R. v. Cyr, 2012 ONCA 919; R. v. Durigon, 2017 ONSC 7075. The law is clear that this type of evidence is admissible although there is a fine line before it crosses over to opinion evidence. With the cooperation of counsel, it was agreed that DC Morden would be called to give his technical evidence and that if there was an issue that a question asked by either counsel crossed the line, if I was satisfied that the question was in fact being asked that would elicit opinion evidence the lawyer asking the question could decide whether or not to seek to qualify DC Morden to answer that particular question. This would apply to Ms. Casey as she advised she might want to elicit some opinion evidence from DC Morden that might be favourable to the Defence. On this basis DC Morden gave his evidence. In the end, there was no objection to any of his evidence.

[191] DC Morden reviewed his training and on the job experience in the TCU since 2007, as set out in his CV, in the forensic examination and analysis of all electronic devices – namely any device capable of storing electronic data, including how he has continually updated his training given changes in technology. His work has included the extraction of data from electronic devices and analyzing that data has been one of his largest functions in the TCU. He described the mandate of the TCU as assisting the Toronto Police Service and all partners in the justice system in identifying, analyzing, documenting and reporting on all evidence likely to be stored in an electronic format. DC Morden testified that he has been qualified to give expert opinion evidence in the forensic examination and analysis of electronic devices about 20 times or so, but he had stopped keeping track. His training has included cellular technology, cellphone seizure and analysis, data recovery, forensic imaging (which I understand is what is done to make copies of data stored on an electronic device), an internet course on common software and computer-based applications that are found on computers and mobile devices, the extraction and analysis of things such as chat messaging, mobile forensics on android operating systems, memory chips in mobile devices, and password recovery.

[192] DC Morden testified that the skills he has learned for computer analysis are transferable to cellphones which essentially are computers. He has a global certification as a Certified Forensic Computer Examiner, a qualification he obtained in 2011 and must maintain by re-testing every three years. He is a Certified Operator and Analyst for a software program called Cellebrite UFED, which as I will come to, was used to extract data from Mr. Lira’s cellphone. With respect to Google Maps, DC Morden testified that his ability to speak to the matters that the Crown had asked him to was based on a culmination of his experience and training.

[193] DC Morden examined Mr. Lira’s cellphone, a Samsung Galaxy M2, which included the SIM card, that was plugged into the phone, which was used to store data on the phone, pursuant to a search warrant. The SIM card is the actual chip that has the user account information and the memory card. He wanted to do an extraction – i.e., make a copy of the user data on the phone. Mr. Lira’s cellphone was locked with a passcode which DC Morden was unable to bypass. He then tried to extract the data from the phone through the phone itself, using the operating system on the phone, but he was unable to do so. As a result, he had to remove the memory card and conducted an extraction of a copy of the user data from the memory on the phone itself resulting an image/copy of the memory on the phone. Everything in the memory on the phone was extracted. DC Morden explained that he then used Cellebrite to parse the extracted memory to prepare an extraction report putting the data from various sources into a user-friendly format that could be more readily viewed known as the UFED Reader. The full extraction report was disclosed to the Defence and Ms. Casey took no issue with the results of the extraction of data from Mr. Lira’s cellphone using this method. Images from different parts of the extraction were then entered into evidence. I accept that these images are all authentic and accurately reflect parts of what was extracted from Mr. Lira’s cellphone.

[194] DC Morden testified that he also used a forensic tool to image the contents of the memory card that would have still been visible to the user and he created a file of that information. This did not include any deleted files. There was not a lot he could do with the SIM card save for obtaining subscriber information and phone number and the service provider.

[195] Using Cellebrite, DC Morden extracted various WhatsApp Chats (“Chats”), texts from the Short Message Service (“texts”), some of which had been deleted and he recovered photos, user account and other information from Mr. Lira’s cellphone and screen shots of some of that information were entered into evidence. The accuracy of these was confirmed by DC Morden and are not in issue. I find that they were incoming or sent Chat or text messages as set out in these screen shots.

Google Maps Images

[196] DC Morden also testified about certain Google Maps images he found on Mr. Lira’s cellphone that the Crown argues represent the results of searches that Mr. Lira did of certain premises he and other members of the group intended to rob. Ms. Casey made several arguments as to why that evidence is not reliable. Although DC Morden gave detailed evidence about where he found these images on the phone, Ms. Casey did not suggest that these images do not appear on Mr. Lira’s cellphone and so I will not summarize that evidence. However, Ms. Casey did vigorously argue that the evidence DC Morden gave about what steps would have been taken by the user to get these Google Maps on Mr. Lira’s cellphone is not reliable.

[197] DC Morden testified that there were about 1,670 images on Mr. Lira’s cellphone in the specific Google Maps folder and of those he found nine Google Maps images that the Crown relies upon that came from that folder. Ms. Batorska took DC Morden through those Google Maps images found on Mr. Lira’s cellphone and her Power Point of those images included close-ups of those images that were not on the phone. This was done to assist me in finding what location the image was really of. As a result, there are only nine Google Maps street view images that were actually extracted from a folder on Mr. Lira’s cellphone. The Crown’s position is that they are Google Map street view images of four of the locations robbed, as follows:

a) Image dated February 10, 2018 at 5:46:02 p.m.

b) Image dated February 12, 2018 at 3:53:23 p.m.

c) Image of a CIBC dated February 12, 2018 at 3:53:24 p.m.

d) Image dated February 12, 2018 at 3:53:27 p.m.

e) Image dated February 12, 2018 at 4:12:36 p.m.

f) Image of a BMO dated February 12, 2018 at 4:13:01 p.m.

g) Image dated February 12, 2018 at 4:13:03 p.m.

h) Image dated February 23, 2018 at 8:10:44 am

i) Image dated February 23, 2018 at 8:10:48 am

[198] DC Morden testified about the tests that he performed using Google Maps and how he looked at each stage he went through, in an attempt to determine the use or purpose of these Google Maps images found on Mr. Lira’s phone and how these Google Maps images might be created. In summary he explained that since he could not obtain the same model of Samsung phone that Mr. Lira had, with the same operating system, he used a different make and model of an Android phone with a slightly newer operating system to do these tests – i.e., operating system version 7 versus version 6 on Mr. Lira’s phone. DC Morden testified that he was not concerned about the reliability of his tests because he was using a different Android phone because Android operating systems are designed to work on all kinds of different manufactured devices so in terms of operation there would not be much of a difference by using a different Android phone.

[199] The only concern DC Morden had was to consider how much the fact the operating system he used was the next newer version might impact his tests, but he felt that they were reliable. DC Morden admitted that the Google Maps application that he used would also have been different from the one on Mr. Lira’s phone, but he testified that by using the Google Maps application on the Android phone he was using, he found that it was generating the same folder structure in that how the folders were organized was the same. I asked DC Morden during his evidence in chief to clarify if by the same file structure, he meant that what he was seeing were the same images, in other words that when he compared the Google Maps images from Mr. Lira’s phone to the ones he obtained when he searched using the Android phone, the images he found were the same as the ones found on Mr. Lira’s cellphone.

[200] Ms. Casey objected that this question would elicit opinion evidence. When I pointed out that I would be able to compare the images and make my own determination she explained that it was not just a matter of comparing the images DC Morden saw at the end of his tests to the images on Mr. Lira’s cellphone because she was challenging the method that he used to get to a particular image. In essence her position is that even if I conclude that the resulting Google Maps images that DC Morden saw following his tests are the same as the Google Maps images we see on Mr. Lira’s cellphone, that does not mean that the method used by DC Morden was the same method used that resulted in the images on Mr. Lira’s cellphone. She explored this further in her cross-examination of DC Morden which I will review.

[201] DC Morden then testified that based on his technical knowledge he did not think that the difference in the operating system he used as compared to the one on Mr. Lira’s phone made a difference in terms of the reliability of what he found because applications are meant to work across numerous versions of the same software. He went on to explain that for his tests he was running Google Maps version 9.47.3. and on Mr. Lira’s cellphone he was running a slightly newer version, 9.68.2. This did not cause him any concern with the reliability of the tests that he ran as he was able to compare the folder structure for both versions and both were organized in the same way.

[202] DC Morden reviewed the procedure he used to get his Research Test Slides (“Test Slides”) and to obtain a street view of a location. He testified that he turned location services off on his test phone so it would not snap to his location. He then launched the Google Maps application. As a result, the image that came up was of all of North America and he used his fingers to zoom into the Martin Grove Road and The Westway area of Etobicoke. The first image he obtained was what one typically sees on Google Maps – i.e., an overview of a map of streets and some locations named on the map like banks, Tim Hortons etc., (“map view”). DC Morden then went on to explain how he tried get a street view of this area, i.e., images of what the actual street and area looks like as if you are standing on the street (“street view”). He found that by “dropping a pin,” namely touching the screen on a particular point of the map view image, which he must have done on a RBC that was in that area, a small thumbnail image of a street view appeared and when he clicked on that image a full screen image of the street view of the location where he had dropped the pin popped up. In this test it was a plaza. DC Morden explained that once he had the street view image, he was able to move the image left, right, forward and so on. In other words, he would be able to move this image to get a 360-degree view of that location. All the necessary images to allow him to do that were loaded automatically and he would not have to move the image for those to load.

[203] DC Morden explained that at the end of these tests he did an extraction from the test phone. He located what he called the “image manager disk cache folder” and he included a screenshot of part of this folder which he said contained about 310 pictures or so that were loaded onto the phone, all in relation to his activity from this particular test and others. He did not manually create those; these were created automatically by Google Maps. DC Morden explained that he then went to the time that he initially went to street view, which is noted on his screenshot and he compared the image he got from the extraction to the image he saw when he did his tests, using screenshots he had taken along the way. The example he showed clearly shows the same image saved that the extraction image shows a closer view.

[204] DC Morden testified that he then repeated the exercise, this time tapping and dropping a pin on the street itself in the map view – namely on The Westway and again he got a thumbnail of a street view and when he clicked on it a full screen image of the street view appeared, this time the entrance/exit to the plaza in that area and again he was able to move the image around with his fingers. Again, he compared the extraction image with his screenshots, and they were the same.

[205] DC Morden testified that later the same day he went to the Yonge and Finch area on Google Maps to do a test. He wanted to see what files would end up in that images manager disk cache without going to street view. He launched Google Maps again and started by hovering over the Finch and Yonge street area looking at just the map view. He moved around in the map view without dropping any pins. When he then looked at the image manager disk cache folder, and he checked the individual images, he did not find any street views. What he found were map images and then images of the outside of businesses and even the inside businesses such as restaurants and restaurant reviews and he provided an example of the type of picture that he saw in his Test Slides, a picture of a business, a burger place. In cross-examination DC Morden admitted that he did not click on that image of the burger place to determine if it gave him a 360-degree street view.

[206] DC Morden testified that he did quite a few different tests – probably 16 or so – and he learned that he would not get a Google Map street view image into the image manager disk cache folder unless he dropped a pin and then clicked on the small thumbnail image that appeared on the map view image. In other words, in his tests it was a two-step process to get a street view using Google Maps. Based on the number of tests that he did he was satisfied with the reliability of what he found.

[207] In cross-examination DC Morden admitted that when he did his tests, he was using a different version of Cellebrite to do the extraction from the version used on Mr. Lira’s phone. However, he said that one would not expect to see much more than organizational differences in the data and that all the core data should be roughly same with some exception in things they might not have been aware of earlier that would be shown. As I understood this, that might mean additional data would show but that would not change what the data would have been before.

[208] DC Morden testified that apart from the image manager disk cache folder, there was a database in Google Maps that he found that contained searches. If he searched for Yonge and Sheppard in Google Maps, it took him to a map view of Yonge and Sheppard and there would be an entry in that database. He would still have had to follow his two-step procedure to get a street view. When he simply scrolled over an area in map view, an entry was not made into the database.

[209] Ms. Casey put to DC Morden that none of the searches that had been performed on Mr. Lira’s cellphone were of the addresses for any of the locations robbed and he admitted this was true but added that he was not aware of all of those addresses. DC Morden was then taken by Ms. Casey to the searched items of the actual folder on Mr. Lira’s phone, not just in Google Maps, and he admitted that of the 55 items searched for, Google Maps only appears once, and the search was done for 54 Winford Heights Crescent on January 5, 2018. This search is not relevant to any of the locations of the robberies. DC Morden also admitted that his understanding is that the web history folder on Mr. Lira’s phone, which contains all of the data related to searches done on the web – browsing activity and browser use – did not contain addresses for any of the robberies. I presume this is the case as Ms. Batorska did not challenge this.

[210] In cross-examination DC Morden testified that he did start up Google Maps and drive to a particular location in a couple of his tests. These were not specific to the locations of the robberies. None produced a street view image or a thumb nail image that he could click on.

[211] The reliability of the evidence concerning the Google Map images on Mr. Lira’s cellphone will be a very important issue on the trial proper. Ms. Casey argued that no qualified expert was called on the cellphone evidence, that DC Morden did limited tests due to time constraints and that some scenarios were not run by him in addition to the fact he had to use a different Android phone and different software. She argued that to “ensure absolute reliability” everything needed to be the same. Those are arguments to be considered at the conclusion of the trial but for now I conclude that based on the evidence that DC Morden provided, I have no difficulty in concluding that it is reasonably credible to believe that the Google Map images on Mr. Lira’s cellphone were images he created using the two-step procedure identified by DC Morden on the dates and times recorded in his cellphone.

[212] I am also able to compare the images on Mr. Lira’s cellphone to the locations of the corresponding robberies based on the evidence of Det. James McDonald which was not challenged. He testified that he was asked by Ms. Batorska to verify how certain specific locations appear in Google Maps street view and the screenshots of the results were entered into evidence (the “McDonald Images”). These screenshots include the specific locations of the RBC – Westway robbery, the BMO – Provost robbery, the CIBC – Finch robbery, and the SWP robbery. Having compared the McDonald Images to the Google Map street view images on Mr. Lira’s cellphone I find that it is certainly reasonably credible to conclude that the Google Map street view images on Mr. Lira’s cellphone were of the locations of these four robberies. I will make further findings at the conclusion of the trial as to how these images could have ended up on Mr. Lira’s cellphone and why.

[213] There is no issue of the reliability of the other information that was extracted by DC Morden from Mr. Lira’s cellphone and that information is as follows.

Contacts

[214] Irene Bigus was one of Mr. Lira’s contacts and this is important to the Crown’s theory that Mr. Lira went to her apartment after he entered 22 Varna.

WhatsApp Chats

[215] The relevant portions of the WhatsApp Chats (“Chats”) extracted from Mr. Lira’s phone are as follows:

February 4, 2018

Someone named Mayra texted Mr. Lira and asked if he “can get 200 percs” and asks for the “peach price lol”. This was followed by a second text that said “average” and third that said “300”. Mr. Lira responded a few seconds later and said: “Usually 3 bucks a pill” and then sent a second text stating that he would “ask my boy how much if its 3 hundo”.

February 23, 2018 (This is the day after the SDM robbery).

Just after 1 p.m., Mr. Lira texted Mayra stating: “tell ur peeps if dey want it 4 a pop dey can get it now”. He added: “if not dey gotta wait”. Mayra responded that he knew and that he “told him” that he was going to look for him when he got back.

At about 1:30 p.m., Myra asked Mr. Lira: “Are we good for the 300” and then asked Mr. Lira: “Can you come down before 4?” Mr. Lira responded that he did not know “how im coming down”.

At about 1:38 p.m., Mayra asked Mr. Lira where he was and added: “you don’t wanna subway it” to which Mr. Lira responded: “But yo tell ur peeps u fucked up da number n it was post to b 4 a pop n see wat he says”. He then added: “N if he trips then b like finee one time thing” and “Cause in case u don't know dis is harder to get then coke”.

At about 1:40 p.m., Mayra texted Mr. Lira three times and said: “Listen my boy just told me that he actually did tell him 4 a pop but because he wanna to make $ on the sale”, “So basically he took 150”, “But the guy thinks it's 4”. To these texts Mr. Lira responded: “Ohhhhhhok” to which Mayra asked him: “Is that good”.

At about 1:42 p.m., Mr. Lira responded that he was “borwd” and that he would: “cut in 30 mins and he added a text telling Mayra: “N next time ur boy wants to make a change just tell me u nerd. I got no probz wit dat”. Mayra responded he did not know until he went back to say 4 and “he told me that,” and he added: “But that's soft” and “150 our of 1200”.

February 28, 2018 (before the SWP robbery)

At about 12:14 p.m., Mayra asked Mr. Lira to “find out how much 25 of the 20 mg of addy is”. Mr. Lira responded “Cuanto” to which Mayra responded “25 of the 20 mg”.

At about 12:22 p.m., Mayra texted Mr. Lira: “Also try and get percs I got another buyer in bulk” to which Mr. Lira responded: “Aright”.

March 1, 2018

At about 12:19 p.m., Mr. Lira texted Devon Kerr and asked him if he: “know da clientel for perks”. Mr. Kerr responded: “yee for fam” and added: “my dad buys a lot of perks”. He then texted Mr. Lira and said: “I got a couple next tings too that are promising” and “I know where this guy I was in jail wit lives m and he sells work”.

At about 12:33 p.m., Mr. Lira asked Mr. Kerr: “how much would ur dad buy n for how much a perk”. Mr. Kerr responded that he would ask his dad when he got off work to which Mr. Lira responded: “Arigh do dat n anybody else”. Mr. Kerr then texted that he would ask family and that he knew a: “couple of next Ppl and some of my dads friends that I was in jail wit”. Mr. Kerr then asked Mr. Lira: “What perks are they” and “Are they the tecs” to which Mr. Lira answered: “Ya da white tecs” and added: “Why wats up”.

At about 1:52 p.m., Mr. Kerr texted Mr. Lira and answered: “ … just want to know cuz I know the price for those down here”. Mr. Lira then asked him what the price was to which Mr. Kerr answered: “Normally 5 a pill” to which Mr. Lira responded: “so tell ur peeps I got enuffffff”.

SMS Messages

[216] There were also texts extracted from Mr. Lira’s cell phone from the Short Message Service (“SMS”). The relevant texts are as follows:

February 16, 2018

At 9:24 a.m., a text from Mayra said: “Ask about the addy I need 20.” Ms. Casey did not dispute the Crown’s position that addy means Adderall, a drug to treat ADHD and I find that is the case[^1]. It is not clear however that Mr. Lira read this message as its status is shown as “unknown”.

March 1, 2018

At 12:17 p.m., Mr. Lira sent a message to someone named Styles 1 and stated: “Arigh yo its 60 mg codeine phosphate” and then: “Arigh yo its 60 mg codeine phosphate, 3 bills of dem”.

At 12:18 p.m., Styles responded: “Ok I’ll get a reply tomro”.

At 12:18 p.m., after confirming that Styles did not have WhatsApp, Mr. Lira repeated: “Arigh its 4 bills of dem”.

At 12:20 p.m., Mr. Lira repeated to Styles: and then “N 7 bills of 30 mg” and then “N like 4 bills of dem ty wit codie” and then asks: “Got dat”.

At 12:22 p.m., Styles apologizes and says he has been working “some demo shit”.

At 12:23 p.m., Styles asks Mr. Lira: “How many perks”. I have no evidence of a response.

At 1:24 p.m., Mr. Lira texted someone by the name of Carlitz, the address of 747 Don Mills Rd. North York, ON M3C 1T2 and added McDonalds.

At 1:27 p.m., Carlitz texted Mr. Lira back stating: “Disen TEC en grande letta? Y una linia en el medio”.

Between 1:34 p.m. and 3:00 p.m., Carlitz sent a number of texts to Mr. Lira asking where he was to which Mr. Lira did not respond. These tests are shown as unread as of 2:47 p.m. Mr. Lira was arrested at 2:14 p.m. and did not respond to any of these texts.

At 4:24 p.m., Carlitz texted Mr. Lira that he was at the McDonalds.

At 4:57 p.m., Carlitz texted Mr. Lira and asked: “Should I cut”.

[217] Although there is no dispute that these Chats and texts were on Mr. Lira’s phone and that they were sent and received at the times shown, there is a dispute as to what they mean. That will also be critical evidence for me to consider at the conclusion of the trial. For now, I do find that it is reasonably credible to believe that Mr. Lira was asked for certain medications, and that he had certain medications to sell. I will be more specific when I consider the linkage evidence to the robberies of the pharmacies.

Is there some evidence linking Mr. Lira to the robberies?

[218] With all this evidence in mind, I turn to the robberies and the evidence the Crown relies upon to link Mr. Lira to the specific robberies.

CIBC – Lloyd Manor robbery

[219] With respect to the robbery of the CIBC at 201 Lloyd Manor on January 19, 2018, Ms. Batorska argues that there is some evidence upon which a trier of fact could reasonably believe that the Lira Rifle is the same rifle as the one seen being held by the gunman in the surveillance video of this robbery. I do not make a final decision of course in this regard but given the many similarities that I have already described between the two rifles and the fact that the Lira Rifle has clearly been modified by cutting off the barrel and given the threshold of “some evidence” is a low one, I conclude that there is some evidence linking Mr. Lira to this robbery and his participation in this robbery and in particular that he was the person holding the rifle.

RBC – Westway robbery

[220] With respect to the robbery of the RBC at 415 The Westway on January 29, 2018, as I have already stated the role of the gunman was quite different in this robbery as compared to the other robberies and that would probably have been a significant enough dissimilarity to dismiss the application with respect to the Counts related to this robbery.

[221] I did however consider Ms. Batorska’s submissions on the linkage evidence. She relies on the Google Maps street view image on Mr. Lira’s cellphone and there is certainly some evidence that this image was of the location of the robbery. However, in my view given the date stamp on Mr. Lira’s phone is February 10, 2018, which is 14 days after this robbery, that Google Map street view image alone does not provide any evidence connecting Mr. Lira to that robbery. Ms. Batorska argued that it was still some evidence given the low threshold but if the whole purpose of these Google Maps street view images was to consider the actual location of banks to rob, there would be no reason to do this at any time after a robbery. The fact this Google Maps street view image was one of four such images of the four robbery locations does not in my view move it up to even the low threshold required at this point in this case. The timing of the creation of the images for the other robberies in fact makes this clear.

[222] Accordingly, I ruled that the counts related to this robbery, Counts 4-6, would not be included in my similar fact ruling and that these counts would be judged only on the evidence relevant to those counts. Following my oral ruling, the Crown withdrew Counts 4-6 which related to this robbery.

BMO – Provost robbery

[223] With respect to the robbery of the BMO at 57 Provost Dr. on February 12, 2018, Ms. Batorska argues there are two links. The first is what she submits is Mr. Lira’s distinctive hairstyle of braided hair in cornrows and tied back into a bun. In this regard she relies on a picture of Mr. Lira on his cellphone that was taken three days before this robbery. It shows his hair in four cornrows and a bun at the back of his head. Ms. Casey disagreed and referred me back to the submissions that she made that I referred to in my Charter Ruling, including her arguments that this is not a distinctive hairstyle, Mr. Lira’s hairstyle changes and was different at the time of his arrest and that the bumps on the top of the man with the firearm and wearing the 3-hole balaclava that can be seen in the video surveillance of this robbery could simply be seams in the balaclava.

[224] These are all valid submissions but given that only some evidence is required, I conclude that the fact Mr. Lira had his hair in cornrows tied back in a bun both three days before this robbery and at the time of his arrest and given that his cornrows could look like there are bumps and valleys under a balaclava, and given that the man in the robbery has his hair in a bun and that given the loose strand that is sticking up suggests that the hair on the gunman could have been braided like Mr. Lira’s. This is some evidence of a link between Mr. Lira and the man with the firearm in this robbery.

[225] In addition, there are the three Google Map street view images of the location of this robbery, that were found on Mr. Lira’s cellphone at 4:12 p.m. on the day of the robbery, which include a close-up image of the BMO. The robbery was only 33 minutes later. This is certainly some evidence linking Mr. Lira to this robbery and his participation in this robbery.

[226] For these reasons I find that collectively, this evidence is some evidence that Mr. Lira participated in this robbery.

CIBC – Finch robbery

[227] With respect to the robbery of the CIBC at 3420 Finch Ave. East, on February 14, 2018, the only link between Mr. Lira and this robbery that the Crown relies upon are the three Google Map street view images of the location of this robbery, including a close-up of the CIBC that were found by DC Smith on Mr. Lira’s cellphone created two days before this robbery and very shortly before the images of the BMO location robbed that day. Again, in my view this is some evidence linking Mr. Lira to this robbery and his participation in this robbery.

SDM robbery

[228] With respect to the robbery of the SDM at 51 Underhill Drive on February 22, 2018, Ms. Batorska submits that there are two links between Mr. Lira and this robbery that Ms. Batorska relies on. First of all, it is her position that if I find that it is reasonably credible to believe that Honda AYHJ014 was used in this robbery, then given Mr. Lira was in possession of this vehicle on February 28, 2018, that is some evidence of a link and his participation in this robbery. I have already set out that based on what I state in my Charter Ruling, and in this ruling, in my view the position of Ms. Batorska that Honda AYHJ014 was the vehicle used in this robbery is reasonably capable of belief. Therefore, I conclude that this is some evidence of one link.

[229] Ms. Batorska also relies upon the Chats between Mr. Lira and Mayra on February 4 and 23, 2018 and I have set those out. Her position that they were talking about whether or not Mr. Lira could get Mayra 300 Percocet pills at $4.00 per pill and his texts to Mayra on February 23, 2018 that they could get them “now” is reasonably capable of belief and is also some evidence that Mr. Lira had a large quantity of Percocets to sell.

[230] I accept Ms. Casey’s position that there could be other conclusions to draw from this exchange but at this stage only some evidence of a link is needed, and that evidence does not need to be conclusive. That will be an issue for the end of the trial. As I have already set out, Ms. Zheng’s evidence is that the man with the bag asked her to show him where the Percocets were and that they stole about 1000 tablets. Accordingly, I find that this exchange is some evidence of another link that Mr. Lira participated in this robbery, particularly since the conversation on February 23 was the day after this robbery.

[231] For these reasons I find that collectively, this evidence is certainly some evidence that Mr. Lira participated in this robbery.

SWP robbery

[232] With respect to the robbery of the SWP at 3410 Sheppard Ave. East, Ms. Batorska submits that there are numerous links between Mr. Lira and this robbery.

[233] First of all, Ms. Batorska submits that the Lira Rifle is similar if not identical to the rifle that is seen being held by the gunman in the surveillance video of this robbery. She relies on the fact that about an hour after the robbery Mr. Lira was seen pulling a black suitcase and that when he was arrested the Lira Rifle was found inside a black suitcase. In my view, given all of the similarities that can be seen on the surveillance video as DC Smith pointed out and I can observe, the suggestion that there is some evidence that they were one and the same rifle is certainly reasonably capable of belief for the reasons I have already stated. This is reinforced by the timing of when Mr. Lira is seen with a black suitcase that appears to be the same as the one he had the Lira Rifle in at the time of his arrest. Although as Ms. Casey submitted the SKS rifle is not unique and millions were manufactured and aftermarket parts could account for the similarities, at this stage I do not have to make a definitive finding that they were the same rifles. That is a matter to be decided at the end of the trial.

[234] I come to the same conclusion with respect to the red and black Metro reusable shopping bags. Again, I do not find that the bags Mr. Lira and Mr. Snyder are seen carrying after the robbery are the ones seen in the surveillance video being carried by the man with the bag in the SWP robbery, but they are clearly the same style and design of bag and are both from Metro and this is some evidence of another link between Mr. Lira and his participation in the SWP robbery.

[235] In addition, given that the suspects in this robbery came in through a back entrance, it possible that they came by car. In addition, the fact that Honda AJHJ014, a stolen vehicle, was found with a bottle of Concerta medication that had been taken from SWP under the passenger seat, that Ms. Catay testified that the man with the gun was shoving bottles of medication into his pocket and the fact that Mr. Lira was seen driving this vehicle very shortly after this robbery is some evidence of another link between Mr. Lira and the SWP robbery.

[236] Another link Ms. Batorska relied upon are the Chats between Mr. Lira and Mayra on February 4 and 23, 2018 and I have set those out. I have already set out her position in connection with the SDM robbery and it is the same for the SWP robbery, although she adds that on February 23 Mayra asked Mr. Lira for more Percocets. For the same reasons as already stated I find that these messages are also some evidence of a link between Mr. Lira and the SWP robbery.

[237] In addition, there are the Chats between Mr. Lira and Devon Kerr on March 1, 2018, the day after the SWP robbery. Ms. Batorska’s position is Mr. Lira was asking Mr. Kerr if he had a buyer for Percocets and that he had enough to sell and that is because Percocets were requested and stolen during this robbery. As I have already set out, Ms. Takla’s evidence is that the man with the bag asked her to show him where the Percocets were and Percocet pills were stolen from the pharmacy. Again, I will not make any final determination of the meaning of these Chats, but I do find that they are some evidence to support the inference that Mr. Lira participated in this robbery.

[238] The other link between Mr. Lira and this robbery that the Crown relies upon are the two Google Map street view images of the location of this robbery, that were found by DC Smith on Mr. Lira’s cellphone created early in the morning on the day of the robbery. Again, in my view this is also certainly some evidence linking Mr. Lira to this robbery and his participation in this robbery.

[239] In my view for all these reasons there is ample evidence that is reasonably capable of belief that Mr. Lira participated in the SWP robbery. Accordingly, I do not have to consider whether there are further links based on the evidence with respect to 22 Varma. I will review that evidence and make my findings at the conclusion of the trial.

Conclusion on the linkage evidence

[240] For these reasons I am satisfied that there is at least some and, in some cases, ample evidence that a reasonable trier of fact could make a finding that Mr. Lira participated in all of the robberies save for the RBC – Westway robbery.

(3) Final balancing of the probative value versus prejudicial effect

[241] I turn now to a balance between the probative value of the similar fact evidence the Crown seeks to introduce and the potential prejudice.

[242] Dealing first of all with the probative force of this evidence, the sole issue in this case is the identity of the two suspects in each of the robberies and whether or not the Crown can prove that Mr. Lira was one of them and part of a rotating group robbing these locations. As stated in Kanagasivam, at para. 263, as a general rule, if the similarity between the acts is such that it is “likely that they were committed by the same person” or in this case the same group, then “the similar fact evidence will ‘ordinarily’ have sufficient probative force to outweigh its prejudicial effect and it will be admitted: Arp, at para. 50.” Although the links between Mr. Lira and these robberies might be coincidences, that has its limitations. There are inferences that can be drawn between Mr. Lira and all but one of these robberies that suggests the unlikelihood of coincidence and so this evidence has considerable probative force.

[243] As for prejudice, there is no reasoning prejudice as I would have heard this evidence in any event as it all relates to conduct intrinsic to the indictment. No additional time had to be spent leading this evidence. As this is a judge alone trial, the risk of moral prejudice is greatly attenuated, if not completely eliminated. As Watt J.A. stated in McCormack, at para. 69: “[i]n large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice.”

Disposition

[244] For all of these reasons the Crown has satisfied me on a balance of probabilities that in the context of this case, the probative value of the similar fact evidence relating to the issue of identity for all of the robberies, save for the RBC – Westway robbery on January 29, 2018, outweighs any potential prejudicial impact of considering the evidence across counts in this judge alone trial.

[245] I want to emphasize, as I did when I gave brief oral reasons for this Ruling, that the determination I made at this stage of the trial is not on the ultimate issue of whether identity has been proven beyond a reasonable doubt.

[246] For these reasons the Crown’s application to admit similar fact count to count evidence is granted across all counts, save for the counts related to the RBC – Westway robbery, Counts 4-6.

Spies J.

Reasons Released: April 30, 2021

COURT FILE NO.: CR-21-40000107-0000

DATE: 20210430

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

IVAN LIRA

Ruling on Crown’s Similar Fact Application

SPIES J.

Reasons Released: April 30, 2021

[^1]: I do not recall if any of the pharmacists gave this evidence but given the ubiquitous nature of Adderall in my view this is common knowledge in any event.