COURT FILE NO.: CR 21-40000107-0000 DATE: 2021-04-30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IVAN DAVID LIRA Defendant
Counsel: Kasia Batorska, for the Crown Jordan Casey for the Defendant Ivan Lira
Before: Spies J.
HEARD: February 8, 9, 11, 12, 15 – 18, 22, 25, 26, March 1 - 4, and 8 - 11, and April 23, 2021
Reasons for Judgment
Overview
[1] The defendant Ivan Lira is charged with five sets of robbery offences, including pointing a firearm and disguise with intent, arising out of five robberies that occurred between January 19, 2018 and February 28, 2018. He is also charged with offences relating to the 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, in addition to one charge of possession of a weapon contrary to a prohibition order – a total of 17 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 original six robberies Mr. Lira was charged with. Mr. Snyder pleaded guilty to certain offence(s) on November 18, 2019. I was not advised what charge(s) Mr. Snyder pleaded to.
[4] At the outset of trial, Mr. Lira brought an application to exclude all the evidence seized at the time of his arrest, alleging breaches of his ss. 8, 9 and 10(b) Charter rights. I dismissed that application; see R. v. Lira, 2021 ONSC 1380 ("Charter Ruling").
[5] The Crown brought a 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. I granted that application in part; see R. v. Lira, 2021 ONSC 1766 ("Similar Fact Ruling"). Following this ruling, the Crown withdrew the charges related to the robbery of the Royal Bank of Canada on January 29, 2018, Counts 4-6, leaving five robberies in issue.
The firearm and related charges
[6] At the time of his arrest Mr. Lira was found in possession of a rifle that had been modified by someone cutting the length of the barrel down (the “Lira Rifle”), along with a detachable magazine containing 17 cartridges of ammunition for that rife. The rifle was in the main compartment of the suitcase he was pulling, and the magazine/ammunition was in a separate compartment.
[7] I heard from DC Smith who was qualified to give expert opinion evidence in the examination and analysis of firearms, prohibited devices and ammunition. He examined and took photographs of the Lira Rifle. His evidence that the Lira Rifle is a Simonov, SKS Russian, semi-automatic rifle, that it is operable and functions as a single-shot rifle and that it is a prohibited firearm as defined in s. 84 of the Criminal Code is not disputed.
[8] In light of my Charter Ruling, and other admitted facts, Ms. Casey, counsel for Mr. Lira, advised that Mr. Lira was not admitting that the firearm found in his possession at the time of his arrest was used in any of the robberies, but he accepted that there would be a finding of guilt with respect to the relevant charges with respect to the possession of the firearm.
[9] It is also admitted that between January 19, 2018 and March 1, 2018, Mr. Lira was not the holder of a registration certificate issued under the authority of the former Part III of the Criminal Code and under the authority of the Firearms Act, nor was Mr. Lira a holder of any Firearms Acquisition Certificate or License. It is also admitted that on October 27, 2014, Mr. Lira was placed on a s. 109 order prohibiting him from possessing any firearm, crossbow, restricted weapon, ammunition and explosive for life.
[10] In light of this evidence and the admitted facts, I find that the Crown has proven beyond a reasonable doubt that Mr. Lira is guilty of the following charges:
a) Count 18 – possession of a prohibited firearm while knowingly not being the holder of a licence, contrary to s. 92(1) of the Criminal Code;
b) Count 19 – possession of a prohibited firearm with readily accessible ammunition that is capable of being discharged in the firearm contrary to s. 95(1) of the Criminal Code; and
c) Count 20 – possession of a firearm while prohibited by court order, contrary to s. 117.01(1) of the Criminal Code.
The Issues
[11] There is no dispute that the five remaining robberies occurred or that they were all acts of violence to steal money and/or drugs and that therefore the persons who committed those robberies are guilty of s. 343 of the Criminal Code. It is the position of counsel for the Crown, Ms. Batorska, that the robberies were committed by a rotating group, that two persons from the same group committed all of the robberies, and that Mr. Lira was always one of those two persons. In each of the 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 five robberies. In the alternative, Ms. Batorska submitted that Mr. Lira was the suspect who had the reusable shopping bag, which she stated would only impact those charges where it is alleged that he pointed a firearm. Mr. Lira denies any involvement in any of the robberies.
[12] The five robberies in issue are as follows:
a) Counts 1-3 – January 19, 2018 – robbery of Mnaal Malik at the Canadian Imperial Bank of Commerce (“CIBC”) at 201 Lloyd Manor Road, while masked and pointing a firearm at Sinan Al Faqeeh (“CIBC- Lloyd Manor robbery”);
b) Counts 7-9 – February 12, 2018 – robbery of Sonja Misur at the Bank of Montreal (“BMO”) at 57 Provost Drive, while masked and pointing a firearm at Mohd Abdur (“BMO-Provost robbery”);
c) Counts 10-12 – February 14, 2018 – robbery of Annie Tan at the CIBC at 3420 Finch Avenue East, while masked and pointing a firearm at Jenny Liang (“CIBC-Finch robbery”);
d) Counts 13-15 – February 22, 2018 – robbery of Tara Zheng at the Shoppers Drug Mart (“SDM”) at 51 Underhill Drive, while masked and pointing a firearm at Tara Zheng (“SDM robbery”); and
e) Counts 16-17 – February 28, 2018 – robbery of Iren Takla at the Sheppard Warden Pharmacy (“SWP”) at 3410 Sheppard Avenue East, while masked (“SWP robbery”).
[13] 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 many of the investigating police officers, many but not all 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, the evidence of DC Smith 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 from DC Morden, concerning the extraction of data from Mr. Lira’s cell phone. Thankfully counsel cooperated and came to many agreed facts, including an agreement that the preliminary inquiry evidence of some of the witnesses present at the time of a robbery could be admitted without the need to call those witnesses. This co-operation between counsel considerably shortened the trial and is much appreciated as it allowed me to focus on the real issues.
[14] Mr. Lira elected not to testify in his own defence or call any evidence.
The Evidence and Preliminary Findings of Fact
General evidence about the robberies
[15] There is no dispute that each robbery occurred and the evidence in that regard is overwhelming given the video surveillance evidence from inside the premises as the robberies occurred.
[16] The five robberies took place over a six-week period from January 19, 2018 to February 28, 2018. The first three robberies were of banks and the last two of pharmacies. There was no pattern in the period between the robberies or in the time of day that they occurred. The first one was in the west end of Toronto and the other four were in the east end, but all were close to the 401 highway and occurred within a relatively small geographical area of Toronto. Each robbery was committed within minutes.
[17] All the premises that were robbed were open, with customers inside, at the time of the robbery. The robberies were all takeover-style robberies, with the two suspects coming into the location and the suspect with the firearm taking control over persons inside the premises. Fortunately, no shots were fired, and no one was injured in any robbery – there was no gratuitous violence. A rifle was used in the first and the last robbery and a handgun was used in the others. None of those firearms nor any other ballistic evidence was recovered; although, as I will come to, it is the position of the Crown that the Lira Rifle was the rifle used in the last robbery and that it was used in the first robbery before the rifle was modified.
[18] In all robberies the suspects were masked, usually with a hood up, and wearing gloves. None of the clothing worn in any robbery was the same in any other robbery or unique in any way. Mr. Lira was not wearing any clothing similar to what can be seen in any of the robberies at the time of his arrest nor was any clothing, gloves or masks that could have been used in any of the robberies found in his possession. This could be consistent with his innocence as Ms. Casey submitted, but it could also be because he was clever enough to change his clothing entirely for each robbery.
[19] In each of the robberies one or both suspects were wearing a black balaclava with three holes; two for the eyes and one for the mouth (“3-hole balaclava”) that covered most of their face. This was worn by the person with the firearm in each robbery save for the last one when that person was wearing a black and grey or white face covering and what appears to be a toque.
[20] Ms. Batorska submitted that looking closely at the surveillance evidence of the CIBC-Lloyd Manor robbery one can see the light complexion of the man with the bag. I will come to that. She also submitted that the eyes, eyebrows and area around the mouth of the gunman are shared by the gunman in all the robberies. I do not see anything distinguishing about the eyes, eyebrows or area around the mouth of the gunman in the first place and even if I could, given the quality of the surveillance videos I could not find that those characteristics of the gunman are the same in any other robbery.
[21] Given that bulky or puffy jackets or loose clothing was worn by the suspects during the robberies and given the different angles and distances seen in the surveillance video evidence between the cameras and the suspects, I stated in my Similar Fact Ruling that it is not possible to conclude anything about the height and build of the two suspects, save that in each of the five robberies the suspects look roughly to be of the same height and build as compared to each other. There are certainly no major differences in that regard.
[22] The only possible exception is that Mr. Lira had his hair in corn rows at the time of his arrest and the Crown alleges that corn rows can be seen on the person with the firearm in the surveillance video evidence of the BMO-Provost robbery. That is an issue I will come to as I review the evidence the Crown relies upon to link Mr. Lira to the individual robberies.
The evidence summarized in the Similar Fact Ruling
[23] I will not repeat all of the evidence that is set out in my Similar Fact Ruling with respect to each of the robberies and the witnesses who testified, but it has all been considered in coming to my decision on the remaining charges, save for the evidence related to Counts 4-6.
[24] Although throughout the trial and in my prior decisions, the robberies were referred to by the name of the bank or pharmacy that was robbed, the counts in the indictment plead that a particular person was robbed and save for the SWP robbery, that the gunman pointed a firearm at a particular person. Accordingly, to deal with the charges as pleaded, I must ensure that the necessary evidence to support a finding that a firearm was pointed at the named person and that the named person was robbed, has been proven.
[25] Irene Takla, the pharmacist at the SWP, prepared an inventory of the drugs that were stolen during the robbery of that pharmacy on February 28, 2018 that I do rely on and in the same vein, Ms. Zheng, the pharmacist at the SDM, was able to testify about the drugs stolen from her pharmacy on February 22, 2018.
[26] None of the witnesses to the robberies provided any evidence that could reliably identify the suspects, although some gave relevant evidence with regard to the vehicles used in the robberies, which is relevant and is set out in my Similar Fact Ruling. The evidence of the witnesses was also not very reliable in terms of the type of firearm used in each of the robberies. Some even thought both suspects had a firearm, whereas the surveillance video is clear that there was only ever one gunman.
[27] The better evidence is what can be seen in the surveillance videos and the evidence from DC Smith and his evidence is set out in detail in my Similar Fact Ruling. I will refer to his evidence as necessary with respect to the firearms used in the five robberies and the Lira Rifle.
[28] I also set out in detail the evidence concerning the Samsung cell phone that was seized from Mr. Lira at the time of his arrest on March 1, 2018 including a detailed summary of the evidence of DC Morden, a Forensic Analysist from the Intelligence Division’s Technological Crime Unit (“TCU”), who explained his forensic examination and analysis of the evidence stored in electronic format on Mr. Lira’s cell phone, as well as the actual relevant data stored on that cell phone.
The vehicles used in some of the robberies
[29] I reviewed the evidence in support of the Crown’s position that the suspects used stolen, older model Honda Civics, mainly from North York and many from 13 Division, for some of the robberies in my Similar Fact Ruling. I made certain findings based on the standard of proof applicable on the similar fact application, namely that it was reasonably capable of belief that certain vehicles were used in some of these robberies. I must now determine what in fact is the case with respect to vehicles used in these robberies.
[30] With respect to the BMO-Provost robbery on February 12, 2018, Ms. Casey conceded that the stolen, four door Honda Civic, ARZY313 (“Honda ARZY313”) was used in this robbery. I found in my Similar Fact Ruling that the Crown’s position that the Honda ARZY313 was used in this robbery to get the suspects to and from the BMO was reasonably capable of belief. I find now that this is a fact given the evidence of the eyewitness, Mohd Razzaque, who saw the suspects get into this car and was able to provide police with this licence plate number, and the fact that this car was found with the engine left running in a Green P parking lot 327 metres from the bank at 2760 Old Leslie Street.
[31] With respect to the SDM robbery on February 22, 2018, in my Charter Ruling I set out the evidence about the vehicle observed by the eyewitnesses at the scene, namely Mr. Kuzniak, Ms. Anstey and Ms. Deepnarine. There I also set out why police concluded that the licence plate number given by Mr. Kuzniak must be incorrect and why Detective (“Det.”) Nasser, who was the primary officer in charge of the investigation, believed that a beige, four-door 2000 Honda Civic, with license plate number AYHJ014, (“Honda AYHJ014”). which had been stolen on February 19, 2018 but reported stolen on February 23, 2018 was the vehicle used in this robbery. I also set out some concerns I have with the reliability of the evidence of Mr. Kuzniak. I will not repeat this evidence. I also reviewed the evidence of the damage to Honda AYHJ014, which is visible in the photographs of the vehicle once it was recovered by police, on the driver’s side of the front bumper. It looks like a piece of the bumper is missing or that there is black tape over the area holding a broken piece of the bumper in place, which is consistent with the evidence of what Ms. Antsey described she saw and is not something one would expect to see on a vehicle. I concluded that she must be mistaken as to which way the vehicle was facing as the other witnesses are consistent in their evidence that the vehicle would have been facing her. I also explained in my Similar Fact Ruling why I do not believe that Mr. Kuzniak’s evidence should be preferred because he was the only witness who saw the entire vehicle.
[32] Having reconsidered all of this evidence, in my view Mr. Kuzniak was mistaken as to the colour and possible make of the getaway vehicle. I find the evidence of Ms. Antsey, even though she was mistaken about which way the car was facing, and the evidence of Ms. Deepnarine to be more reliable. Based on their evidence and the photographs of the recovered vehicle, I find that Honda AYHJ014 was the vehicle used in the SDM robbery.
[33] Finally, turning to the last robbery, the SWP robbery on February 28,2018, the position of Ms. Batorska is that Honda AYHJ014 was used by Messrs. Lira and Snyder for this robbery. That is a factual issue I will deal with when I come to the SWP robbery.
The inventory of drugs stolen from the SWP
[34] The day after the robbery Ms. Takla attended at the SWP. She was required by law to do a complete narcotics 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. The difference represents what was stolen.
[35] Ms. Takla testified 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 report of what was missing, and this inventory of stolen drugs was entered into evidence as a business record.
[36] Ms. Takla testified that the medications that were stolen included Concerta, which is an ADHD medication; Lenoltec with strengths of 15 mg, 30 mg and 60 mg; Tecnal and Percocets - 258 pills, which Ms. Takla said were all narcotics; and Tylenol with Codeine - 449 pills of both 15 mg and 30 mg strength (“Stolen Medication from SWP”).
[37] 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 Varna Drive (“22 Varna”), as explained in my Similar Fact Ruling. 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 of those stolen from the SWP 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. I found no issue with the accuracy or the reliability of these records.
[38] Based on these records and the evidence of Ms. Takla I find that the following bottles of pills that were found at 22 Varna were stolen from the SWP on February 28, 2018:
a) Concerta 27 mg., which was found in Honda AYHJ014 – Sticker: P004529;
b) Ratio Lenoltec No.2 – Sticker: N262148;
c) Tecnal which is a narcotic – Sticker: N541403;
d) Concerta 36 mg – Sticker: N360216;
e) Ratio Lenoltec No. 4 – Sticker: N012402.
Mr. Lira’s cell phone
The technical evidence -Google Maps
[39] It is admitted that the Samsung cell phone 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, save for February 12, 2018, as I will come to, that was never disputed. Apart from February 12th, I have no doubt that Mr. Lira was the person using his phone at the material time given the content that it contained and other facts that were admitted concerning this phone.
[40] I have already reviewed the technical evidence given by DC Morden and the evidence of what was extracted from Mr. Lira’s cell phone in terms of Google Maps street view images, contacts, WhatsApp Chats and SMS messages in my Similar Fact Ruling. I will only repeat some of that evidence to explain my findings of fact.
[41] Ms. Casey did not raise any issues with the accuracy of the contacts, WhatsApp Chats and SMS messages that DC Morden extracted from Mr. Lira’s cell phone. The only issue is what do they mean, an issue I will come to. However, Ms. Casey did vigorously argue that the evidence DC Morden gave about what steps would have been taken by the user to get certain Google Maps street view images on Mr. Lira’s cell phone is not reliable. In essence, her position is that even if I conclude that the resulting Google Maps street view images that DC Morden saw, following his tests, are the same as the Google Maps street view images we see on Mr. Lira’s cell phone, that does not mean that the method used by DC Morden was the same method used that resulted in those images on Mr. Lira’s cell phone.
[42] DC Morden testified that there were about 1,670 images on Mr. Lira’s cell phone in the specific Google Maps folder and of those he found nine Google Maps street view images that the Crown relies upon that came from that folder. The Crown submits that they represent the results of searches that Mr. Lira did, in advance of three robberies, scouting out the locations he and other members of the group intended to rob.
[43] In summary, DC Morden found after multiple tests that the only way he could get Google Maps street view images like the ones found on Mr. Lira’s phone was to take two steps, namely dropping a pin and clicking on the thumbnail in order to get a street view of a location. Ms. Casey made several arguments challenging the reliability of the tests DC Morden did and submitted that there could have been other ways that DC Morden did not try, to obtain street view images.
[44] Ms. Casey also argued that no qualified expert was called on the cell phone evidence, but I did not accept her submission that it was necessary to have an expert give the evidence that DC Morden did. I find that DC Morden has ample knowledge and experience to give the evidence that he did and even though he is a member of the Toronto Police Service no issue was raised with his independence or his objectivity.
[45] DC Morden gave detailed evidence about where he found these Google Maps images on the cell phone and Ms. Casey did not suggest that these images do not appear on Mr. Lira’s cell phone, so that is not in issue. The issue is how did they get there. Ms. Casey pointed out that DC Morden had to use a different model of android phone with a different operating system and a slightly newer version of Google Maps. However, DC Morden reviewed that part of his evidence very carefully. He explained why he was not concerned about the fact he was using a different android cell phone or the fact that he was running a slightly newer version of Google Maps. His only concern was the fact the operating system he used was the next newer version and that that might impact his tests, but he testified that based on his technical knowledge he believed the results he obtained were still reliable and his explanation was reasonable. Ms. Casey submitted that to “ensure absolute reliability” everything needed to be the same, but I do not need absolute reliability to make findings of fact.
[46] DC Morden reviewed the procedure he used to get his Research Test Slides (“Test Slides”) and to obtain a street view of a location and I have summarized that in my Similar Fact Ruling. In summary, after many tests DC Morden explained how he moved from an image on Google Maps that is a view of a map of streets and some locations named on the map like banks, Tim Hortons etc., (“map view”) to get a street view of the same 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, a small thumbnail image of a street view would appear 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. DC Morden explained that once he had the street view image, he was able to move the image to get a 360-degree view of that location. All the necessary images to allow him to do that were loaded automatically onto the phone into image manager disk cache folder (“Folder”) and he did not have to move the image for those to load. DC Morden explained how he extracted the images that were loaded on his test phone and Ms. Casey did not challenge the reliability of that information.
[47] 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 Maps street view image into the 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.
[48] DC Morden did admit that using a method he tried in the Finch and Yonge street area, his map images included images of the outside of businesses and even the inside of businesses such as restaurants and restaurant reviews. He provided an example of the type of picture that he saw in his Test Slides, a picture of a burger restaurant. In cross-examination DC Morden admitted that he did not click on the image of the burger restaurant to see if it would give him a 360-degree street view. That is the only example DC Morden gave of a step he did not take but I note that to take this step would have required a deliberate click on an image to get a street view even if that is what would have occurred.
[49] DC Morden may not have tried every conceivable way to obtain a Google Maps street view image and it is the case that none of the locations of the places robbed were actually searched for on Mr. Lira’s cell phone, but the issue in my mind is whether these images could reasonably be on Mr. Lira’s phone as the result of something he inadvertently did or was it something he had to do deliberately, such as the two-step method DC Morden testified to or even clicking on an image of a business. I accept Ms. Batorska’s submission that it would not have been necessary for Mr. Lira to know the addresses of these locations and search for them that way. Based on the evidence of DC Morden, if he was driving around and wanted to look at the surrounding area then all he would have had to do was open the Google Maps application on his cell phone and it would take him to a map view of the area of his current location. By dropping a pin and clicking on a thumbnail he would get a street view of that area. I am satisfied, however, on the evidence of DC Morden that to get these street view images on his cell phone, Mr. Lira would have had to take some deliberate steps. Furthermore, as Ms. Batorska submitted, given the timing and the fact Google Maps street view images of three locations of the robberies are on Mr. Lira’s cell phone could not just be bad luck or a coincidence.
[50] As I stated in my Similar Fact Ruling, I am also able to compare the Google Maps images on Mr. Lira’s cell phone to the locations of the corresponding robberies based on the evidence of Det. James McDonald, which was not challenged. I found in considering the Crown’s similar fact application, that by comparing what I termed the McDonald Images to the Google Maps street view images on Mr. Lira’s cell phone that it is certainly reasonably credible to conclude that the Google Maps street view images on Mr. Lira’s cell phone are of the locations of four robberies that were in issue. Now it is a question of a comparison to the locations of three robberies. Having done the comparison again, I have no hesitation in concluding that the Google Maps street view images on Mr. Lira’s cell phone are of the locations of three of the robberies, the BMO-Provost robbery, the CIBC-Finch robbery and the SWP robbery.
[51] For these reasons I find that for these nine Google Maps street view images, the only reasonable inference, is that Mr. Lira deliberately took one or more steps to obtain the Google Maps street view images we see on his cell phone for three of the robbery locations in issue.
The Chats and SMS messages
[52] As I stated, Ms. Casey did not raise any issues with the accuracy of the contacts, WhatsApp Chats and SMS messages that DC Morden extracted from Mr. Lira’s cell phone. I set out the relevant contents of those messages in full in my Similar Fact Ruling. The only issue is what do they mean? I will review the significance of these messages, including what I find their meaning to be, when I review the robberies in issue. In my view, generally speaking, the meaning of these messages is clear without expert evidence. Slang perhaps and short forms were used, but not what I would consider coded language as Ms. Casey submitted.
The Relevant Legal Principles
[53] There is no issue between counsel as to the relevant law. In coming to my decisions in this matter I must carefully apply the law set out by the Supreme Court of Canada in R v. Villaroman,[^1] as the Crown’s case against Mr. Lira depends largely on circumstantial evidence. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts but may also arise from an absence of evidence. I must also be cautious about the dangers of the path of reasoning involved in drawing inference from the circumstantial evidence; namely the risk of filling in the blanks or jumping to conclusions. In this case I must be satisfied beyond a reasonable doubt that the guilt of Mr. Lira is the only reasonable inference that can be drawn from the evidence; see: R v. Loor[^2].
[54] The test was recently repeated by the Court of Appeal in R. v. Lights[^3] where at paras. 36-38 the court stated:
36 When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.
37 To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
38 Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. [Emphasis added]
[55] The Crown also relies on another decision from the Court of Appeal; R. v. Wu[^4] where at para. 15 the court stated:
It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. [Emphasis added]
Analysis
[56] Given my Similar Fact Ruling I may consider all the evidence relevant to all five robberies when considering whether or not Mr. Lira is guilty of committing any one of the robberies. The impact of my Similar Fact Ruling is that I can draw an inference from the evidence that the same group of people committed all five robberies still in issue and that two persons from that group committed all of the robberies, but that does not mean that those two people from the group were necessarily the same in each robbery or that Mr. Lira was one of the two people from that group who committed any of the robberies.
[57] Accordingly, the sole issue before me is identity and in particular whether the Crown has proven beyond a reasonable doubt that Mr. Lira was one of the two suspects who participated in any of these robberies. As there is no direct evidence linking Mr. Lira to any of these robberies, my determination of these charges will largely be decided by considering the circumstantial evidence.
[58] Ms. Batorska argued that if I am satisfied beyond a reasonable doubt that Mr. Lira was one of the two suspects in the last robbery, the SWP robbery, then I have enough evidence to find him guilty of the other four robberies. Leaving aside whether that position is correct, I will consider the robberies in reverse chronological order.
The SWP robbery – Counts 16-17
[59] On February 28, 2018, between 3:10 and 3:13 p.m., the Sheppard Warden Pharmacy (“SWP”) at 3410 Sheppard Avenue East was robbed. The surveillance video shows two masked men entering the pharmacy. The first man to enter was wearing what appears to be a black and white mask which covered his entire face except his eyes and forehead. He also had a hood that was up over his head and over the top of his forehead. He was carrying in his right hand what I would describe as a black rifle, with a short barrel, no visible butt stock, a curved magazine and what appears to be a pistol grip very close to the end of the rifle. 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. 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 the safe. Ms. Catay testified that the gunman also put some of the bottles of medication in his pocket. After two minutes and four seconds they both exited the pharmacy.
[60] In my Similar Fact Ruling, I found that there is ample evidence that is reasonably capable of belief that Mr. Lira participated in the SWP robbery, given numerous links between Mr. Lira and his participation in this robbery, even without considering the evidence with respect to 22 Varna. I will now review all of that evidence again, as well as the evidence with respect to 22 Varna, to determine whether or not the Crown has proven beyond a reasonable doubt that Mr. Lira was the man with the rifle in the robbery of the SWP.
[61] Irene Takla, the pharmacist and Christina Catay, the pharmacist assistant witnessed the SWP robbery and I have summarized their evidence in my Similar Fact Ruling. Based on their evidence I find that Ms. Takla was robbed of the Stolen Medication and cash and that the rifle held by the gunman was pointed at her and Ms. Catay during the robbery.
Was the Lira Rifle used in the SWP robbery?
[62] Ms. Batorska argued that the Lira Rifle was used in this robbery. She submitted that this rifle is in fact unique and so it must have been the one used in this robbery. Ms. Casey submitted that in the absence of the recovery of the firearm used in this SWP robbery it is not possible to conclude that the rifle in the SWP robbery was in fact the Lira Rifle. It is her position based on the evidence of DC Smith that the SKS rifle is not unique, that millions were manufactured, and aftermarket parts could account for the similarities that are seen between the rifle in the video and the Lira Rifle.
[63] In my Similar Fact Ruling I reviewed in detail the evidence related to the Lira Rifle and the comparison of that rifle to the one seen in the surveillance video of this robbery, including the evidence of DC Smith.
[64] On the evidence before me, Ms. Casey’s position is correct at least in terms of the evidence from DC Smith. Based on the surveillance video, DC Smith testified that he did not see any dissimilarities in the rifle used in this robbery as compared to the Lira Rifle. However, he also said that despite their similarities, he could not say for sure that the rifle used in this robbery was in fact the Lira Rifle or even an SKS rifle as opposed to an AK47 or any other type of rifle, because he could not see the unique identification marks, he used to identify the Lira Rifle as an SKS rifle.
[65] Ms. Batorska submitted that the short barrel on the rifle seen in the SWP robbery is unique and there is no evidence that you can purchase a short aftermarket barrel of this length and that it would be prohibited in Canada. I agree that a short barrel as seen in the SWP robbery would be illegal to purchase here in Canada but that does not mean such a barrel could not be purchased elsewhere and in fact DC Smith testified about the ability to buy aftermarket parts for rifles that are not legal in Canada.
[66] It is true that DC Smith testified that he does not know if a short aftermarket barrel can be purchased for an SKS rifle. On this issue he testified that by the time of the preliminary inquiry in this case, January 2019, he had examined over 12 SKS rifles and none had a barrel that was sawed-off like the Lira Rifle. However, he 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 by Ms. Casey 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 an SKS rifle. Det. Nasser testified that he had never seen one before in his experience.
[67] Although there may be no evidence before me that you can purchase a short aftermarket barrel of the length seen on the Lira Rifle, I am not able to find on the evidence before me that that would not be possible, particularly given DC Smith said it would be possible for rifles that are not SKS rifles and given his admission that the rifle used in the SWP robbery might not have even been an SKS rifle. Furthermore, he did not say it was impossible to purchase a short aftermarket barrel for an SKS rifle and admitted that he had not done any research on aftermarket attachments or modifications to the SKS rifle and that he did not know that much about what is available for an SKS rifle specifically.
[68] As for the other aspects of the rifle seen in the SWP robbery, DC Smith did admit that aftermarket butt stocks can be purchased, that one can alter the grip and that pistol grips are common and that it is possible to obtain a pistol style grip without a butt stock, although such an aftermarket part would not be legal in Canada. DC Smith admitted that it is possible that the pistol grip on the rifle used in the SWP robbery did not have a butt stock. He testified that 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. He admitted that he could not see from the video if the butt stock of the rifle used in the SWP robbery had been cut off.
[69] DC Smith of course was not aware of all the other evidence that links Mr. Lira, and therefore the Lira Rifle, to the SWP robbery. He also did not point out a detail that Ms. Batorska did in her closing submission, that I will come to. The similarities that DC Smith did point out based on comparing the appearance of the Lira Rifle to the rifle seen in the surveillance video of the SWP robbery, are not impacted by the quality of the surveillance video and they are as follows:
a) the overall appearance of the rifle is the same in terms of the short barrel with no front sight or a bayonet mounting bracket, the lack of a butt stock, the angled shape of the end of the rifle, the location of the pistol grip right at the end of the rifle, the shape of the pistol grip and the shape of the wide, slightly curved magazine;
b) the entire rifle is uniformly black including the entire bolt carrier and knob, which is significant as that would otherwise be bare metal; and finally
c) the knob that moves the bolt carrier can be seen to protrude from the right side of the rifle.
[70] What DC Smith was not asked to comment on is the fact that in some of the stills taken from the surveillance video that Ms. Batorska referred to in her closing submissions, a small black protrusion can be seen close to the end of the bottom of the barrel that is consistent with the metal U-shaped loop that is in the same position on the Lira Rifle.
[71] Dealing only with a visual comparison of the two rifles, although one cannot say with 100% certainty that the Lira Rifle was used in the SWP robbery, the fact is that they both have all of the similarities I have referred to including the protrusion. Furthermore, the modifications to make the rifle in the surveillance video of the SWP robbery look the same as the Lira Rifle would all have had to be made with aftermarket parts or other modifications to achieve the short barrel, the lack of a butt stock and the rifle appearing all black including the bolt carrier. Although that would be possible, give the sheer number of the similarities and the number of aftermarket parts and modifications that would have been needed to achieve these similarities in my view makes it highly likely that the rifle in the SWP robbery was the Lira Rifle.
[72] My conclusion in this regard is strengthened by the other evidence I will come to including the fact that just a little more than an hour after the SWP robbery, Mr. Lira was observed by Mobile Support Services (“MSS”) officers pulling a black suitcase of approximately the same size as the one he was in possession of at the time of his arrest. I appreciate black suitcases are not unique, but it seems to be a very unlikely coincidence that Mr. Lira would have been transporting a black suitcase that looks the same as the one he had the next day, which we know the next day was hiding the Lira Rifle but was transporting something else inside the suitcase at the time he was first seen with a black suitcase, particularly given that a rifle that looks identical to the Lira Rifle was used in the SWP robbery only an hour earlier.
[73] The evidence that strengthens this conclusion is as follows.
The observations of Mr. Lira and Mr. Snyder following the SWP robbery
(a) February 28, 2018
[74] I set out in my Similar Fact Ruling the observations of the MSS officers and the discovery of Honda AYHJ014 on February 28th, at approximately 3:48 p.m., about 33 minutes after the two suspects left the SWP robbery, when Detective Constable (“DC”) So, located a stolen beige 2000 Honda Civic license plate AYHJ014, in the rear parking lot of 3886/3888 Bathurst Street. The car was empty, and the engine was off. This location is 11 km from the SWP that was robbed. This location and the SWP are both close to the 401 Highway and so it would likely not have taken very long to drive from the SWP to the location where Honda AYHJ014 was found, if in fact this vehicle was used by the suspects in the SWP robbery, an issue I will come to.
[75] Various MSS officers testified about the surveillance of Honda AYHJ014 and of the persons I have found were Mr. Lira and Mr. Snyder, from the time Mr. Lira was first spotted on February 28, 2018 to his arrest the next day. Surveillance videos and stills from those videos and other photographs taken by the officers were introduced into evidence and a summary is as follows.
[76] At approximately 3:55 p.m., on February 28th, 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 3:55-4:13 p.m.
[77] I have reviewed photographs and video evidence taken by the MSS officers of this man loitering around Honda AYHJ014 and his movements thereafter. There is no admission that this man was Mr. Lira, but it is admitted by the Defence that Mr. Lira is the person who was arrested at the Fairview Mall at 2:14 p.m. on March 1, 2018. I have an image of Mr. Lira on his cell phone and I have photographs and the booking video of how Mr. Lira appeared and what clothing he was wearing at the time of his booking on March 1, 2018. The quality of all these images is good and in light of R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, as the trier of fact, I can make findings of fact including identity.
[78] By comparing the admitted images of Mr. Lira to the photographs and surveillance videos taken by the MSS officers, I have no doubt that it was in fact Mr. Lira whom the MSS officers were watching on February 28th and that he was the man seen loitering around Honda AYHJ014. I note that at that time Mr. Lira was dressed in a grey sweat suit with a black jacket which appears to be the same clothing as the clothing he was wearing at the time of his arrest. However, this clothing is completely different from the clothing worn by either of the two men in the video of the SWP robbery. As I will come to, Mr. Lira’s link to Honda AYHJ014 at this time becomes important as evidence of his participation in the SWP robbery.
[79] Shortly afterwards, at 4:15 p.m., MSS officers observed that another man joined Mr. Lira. There is no dispute that this man was properly identified as Mr. Snyder and given the subsequent observations by MSS officers of this man, his travels with Mr. Lira to 22 Varna, the evidence of Irene Bigus and Mr. Snyder’s arrest on March 1, 2018, there is no doubt that this man was Mr. Snyder. Mr. Snyder was also dressed completely differently than either of the two men in the video of the SWP robbery.
[80] Although these identifications were not made at the time by police, I will refer to these two men from this point on as Messrs. Lira and Snyder.
[81] At this time, Messrs. Lira and Snyder were observed by MSS officers walking east between the buildings at 3886/3888 Bathurst Street and then crossing Bathurst Street, each carrying a red and black re-useable Metro bag (“Metro Bag”). The inside of these bags cannot be seen but they do appear to be full. Based on my observations of what can be seen in the surveillance video of the SWP robbery, they are clearly the same colour and design and appear to be identical to the bag Suspect #2 was carrying during the SWP robbery. Although these bags themselves are not unique nor could it be said that these are the actual bags used in this robbery, it is some evidence of a link between Messrs. Lira and Snyder to the suspects in the SWP robbery, given this is shortly after that robbery.
[82] MSS officers then observed that the two men went to the rear of 3905 Bathurst Street and view of them was lost for a few minutes but when they were seen again at 4:18 p.m. exiting from the rear of 3905 Bathurst Street, Mr. Lira was no longer carrying the Metro Bag. He was never seen again by MSS officers that day or the next day with a Metro Bag and so there is a reasonable inference that he got rid of it somewhere, possibly behind 3905 Bathurst Street. Messrs. Lira and Snyder were then seen walking back to the west side of Bathurst Street and back to behind 3886/3888 Bathurst Street, where they had initially come from. Only Mr. Snyder was still carrying a Metro Bag.
[83] A couple of minutes later at 4:21 p.m., Mr. Lira and Mr. Snyder were observed by MSS officers exiting from between the buildings at 3886/3888 Bathurst Street and they picked up two black suitcases from the area of a garbage bin at the rear of 3886 Bathurst Street. Mr. Snyder was no longer carrying a Metro Bag and so he must have put it into one of the black suitcases or left it in the area of the garbage bin. I find it is more likely he left the Metro Bag by the garbage bin because as I will come to, there was no evidence discovered in a black suitcase that was found in Ms. Bigus’ apartment when it was searched, and it is reasonable to infer that that black suitcase was the one Mr. Snyder had at this time.
[84] Ms. Batorska submitted that when Mr. Lira and Mr. Snyder were seen carrying the Metro Bags that they were likely filled with the clothing they wore during the SWP robbery as they had totally changed what they were wearing. Although this is certainly possible, there are two problems with this submission. First of all, there is no direct evidence of what was in the Metro Bags they were carrying, and secondly, this argument is not only therefore speculative, but it is also circular as it assumes Messrs. Lira and Snyder were the men who robbed the SWP. That said, although MSS officers did not see where the Metro Bags came from or exactly where they went, it is telling that Messrs. Lira and Snyder appear to have disposed of them at two different times and two different locations. It may be as Ms. Batorska submitted that they did not want both bags to be found together. This is consistent with an inference that the contents of the Metro Bags were the clothing worn during the robbery of the SWP.
[85] In any event, coming back to the chronology, after Messrs. Lira and Snyder picked up two black suitcases, they wheeled them to the Honda AYHJ014 and put them into the trunk. They drove away with Mr. Lira driving and Mr. Snyder in the front passenger seat. It was believed by police that Mr. Lira was wearing gloves but based on other observations and images in evidence, it appears he had pulled the sleeves of his grey sweatshirt down to cover his hands. This could explain why no forensic evidence was recovered from this vehicle when it was later examined by police.
[86] Police followed Honda AYHJ014 to a parking lot at 490 Wilson Avenue, where at 4:36 p.m. both men exited the car, and removed the two suitcases from the trunk. Mr. Lira’s sweatshirt sleeves were still pulled down. This address is within walking distance of the Wilson Subway Station and they were seen by MSS officers, each pulling a black suitcase, walking together to that subway station.
[87] As I have said, the black suitcase Mr. Lira was pulling is significant because when he was arrested the next day, the Lira Rifle was found inside a black suitcase. It is not possible by comparing the images I have of both suitcases to find that they are in fact one and the same. As I have said, I appreciate that black suitcases are not unique, however, they do appear to be similar with no obvious dissimilarities, and as I will explain, a review of the remaining surveillance evidence permits a finding that the Lira Rifle was in the black suitcase that Mr. Lira was seen pulling about one hour after the SWP robbery.
[88] Various MSS officers followed Mr. Lira and Mr. Snyder into the Wilson Subway Station and onto the subway platform at 4:42 p.m. They took a southbound train two stops to Lawrence West Station, exited the subway, and walked along Lawrence Avenue West to 22 Varna, where they arrived at 5:01 p.m. This is a three-story community housing building.
(b) 22 Varna
[89] There is no dispute that Mr. Lira entered the building at 22 Varna. However, where he went once he was inside and whether or not he left the building during the night is in issue. The position of the Crown, relying on the observations made by the MSS officers, video surveillance evidence from inside the building and the evidence of Ms. Bigus, is that he went to apartment 206, where Ms. Bigus lived. The significance of this of course, as I will come to, is that bottles of pills that were stolen during the SWP robbery were found in Ms. Bigus’ apartment when it was searched by police on March 1, 2018.
[90] The other reason this evidence is important is that if Mr. Lira remained in the building overnight and then left the building early the next afternoon, with the black suitcase he was seen pulling shortly after the SWP robbery, then I can find that he indeed was hiding the Lira Rifle in that suitcase when he was seen with it shortly after the SWP robbery since it was in the suitcase when he was arrested on March 1, 2018.
[91] When Messrs. Lira and Snyder arrived at 22 Varna, the MSS officers observed that they were both pulling their black suitcases as they walked to the south door on the south side of the building. A surveillance video taken from inside the south entrance of 22 Varna shows both Mr. Lira and Mr. Snyder with the two black suitcases just outside the door. As Mr. Lira sat on the top of his suitcase, Mr. Snyder can be seen pacing back and forth. A little later neither of them can be seen in this video but according to the observations of the MSS officers, presumably it was at this point that Mr. Snyder walked north, and Mr. Lira was seen looking up and waving to an unknown person on the second or third floor. He was also observed throwing something up to the second or third floor and he can then be seen on the video again, back at the south door with both black suitcases. On the surveillance video as someone else approached this door, as this person opened the door they let Mr. Lira enter the building. According to the MSS officers this was at 5:03 p.m. The video surveillance evidence then shows Mr. Lira inside the building going up the stairs carrying both suitcases. Mr. Snyder is not with him. A minute later Mr. Lira can be seen going back down the stairs and he let Mr. Snyder into the building, and they went back upstairs.
(c) Evidence of Irene Bigus
[92] In February and March 2018, Ms. Bigus was living in apartment 206 at 22 Varna. The Emergency Task Force (“ETF”) rammed her door open on March 1, 2018 when they arrived at her apartment to execute the search warrant of her home. She was inside and it is clear from her evidence that this event was not only memorable but also very upsetting.
[93] Ms. Bigus testified that a friend named Jay, who she had met through a friend, was staying with her in her apartment and had been there for about a month. There was not dispute that Jay is Mr. Snyder. A key was needed to get in the outside door of the building and a second key was needed to get into her apartment, but she had not given Jay any keys. Ms. Bigus’ apartment was on the second floor of the building with windows facing south. Ms. Bigus testified that the day before the search warrant was executed, she recalled that she heard someone throw a rock at her window and that when she looked out, she saw that it had been thrown by either Jay or his friend. Ms. Bigus testified that this friend of Jay’s had been to her apartment maybe a total of three times before and when he came over, he and Jay would stay in the living room and she would be in her bedroom.
[94] Ms. Bigus testified in her evidence in chief that she went to go downstairs to let them in but when she opened her door, Jay’s friend was already at her door. She assumed someone else had opened the outside door for him. She let him into the apartment, and he told her that Jay was coming. Ms. Bigus testified that she did not think that he was carrying anything. She went back to her room and Jay’s friend went to the living room. She did not see Jay come in. She did not see or hear either Jay or his friend after this or the next day before the search warrant was executed. She admitted that it was possible that Jay or his friend left her apartment while she was sleeping and said that she is a very sound sleeper.
[95] Ms. Bigus was shown the bag of pill bottles and the black suitcase that was seized from her apartment by police and testified that these items were not hers. She thought they were from Jay and his friend.
[96] In cross-examination Ms. Casey took Ms. Bigus to her statement to police given on March 1, 2018. The beginning of her statement is clearly inconsistent with her evidence at trial as she said that she went downstairs to open the door to the building to let Jay’s friend in. Later in her statement she gave evidence consistent with her evidence in chief. Clearly, she was confused and at one point in her evidence before me, she said that she went downstairs “so many times” to open the door for Jay.
[97] Ms. Casey was being very professional as she took Ms. Bigus through her statement to police but at one point, Ms. Bigus got very upset and said that when she gave her statement her nerves were shot because someone had thrown a “bomb in her house”, referring of course to the entry by the ETF. It must be remembered that Ms. Bigus has absolutely no motive to lie and when she gave her statement to police it was shortly after ETF had rammed her door open which was no doubt a very upsetting experience, something that was clearly still upsetting her when she testified before me. This in my view is understandable. As the cross-examination continued, Ms. Bigus got more upset and accused Ms. Casey of trying to confuse her.
[98] Ms. Casey submitted that Ms. Bigus’ evidence is not reliable. However, considering the entirety of Ms. Bigus’ evidence and the evidence I have already referred to from the surveillance video from inside the building as well as the observations of the MSS officers, I find that the evidence she gave in her evidence in chief is reliable. It accords with what can be seen since Mr. Lira clearly went upstairs and he was someone known to Ms. Bigus.
[99] Ms. Batorska showed two photographs to Ms. Bigus that she had been shown by police when she gave her statement. Ms. Bigus confirmed that her signature is on the photographs. The first picture identifies Jay and the second is of a man who is clearly Mr. Lira. She also wrote on that photo “his friend”. Ms. Casey objected to the photograph of Mr. Lira and Ms. Bigus’ identification of him as Jay’s friend. It was agreed that the weight that can be given to this evidence would be argued at the end of Ms. Bigus’ evidence and that I would determine what weight to put on this evidence at the end of the trial.
[100] This objection was dealt with in a brief voir dire after Ms. Bigus’ evidence was concluded. Ms. Batorska played a video of Ms. Bigus’ statement to police starting at the point just before the photograph of Mr. Lira was shown to her. Ms. Bigus was asked by the officer if she was shown a picture if she could tell him if that was the guy i.e., Jay’s friend. She said yes and was then shown a photograph of Mr. Lira. Without hesitation and very firmly she said: “that’s the guy-that’s his [Jay’s] friend” but that she did not know his name.
[101] Obviously, this evidence does not have the weight of a properly conducted photo line-up and the fact Ms. Bigus was only shown one photograph, particularly in the context of the questions she was being asked, was implicitly leading. However, she did tell police, as she testified in this Court that she saw Jay’s friend two or three times. There is no doubt that Mr. Lira knew Ms. Bigus, as she was a contact in his cell phone. She would therefore be able to recognize a photograph of him, so as Ms. Batorska submitted this was really recognition evidence. The other point I would make is that Ms. Bigus did not strike me as the sort of older woman who would let a strange young man into her apartment and so she must have felt comfortable in identifying this friend of Jay’s as she testified that she let him in when Jay was not yet there.
[102] For these reasons, despite the leading nature of the questions, I have no difficulty finding that Ms. Bigus would have been able to recognize and identify a photograph of Mr. Lira, particularly as his appearance with corn rows although not unique is somewhat unusual and the photograph she was shown is a very fair and clear image of how Mr. Lira looked at that time.
[103] Based on this evidence and Ms. Bigus’ identification of Mr. Lira as Jay’s friend I find that it was Mr. Lira who went to Ms. Bigus’ apartment just after 5:00 p.m. on February 28, 2018. Although she did not recall it, I also find that Mr. Lira would also have brought the suitcases that he and Mr. Snyder were pulling into her apartment. This finding is consistent with and confirmed by the evidence of the MSS officers and the surveillance video that I have already referred to. Based on that evidence I also find that Mr. Snyder joined Mr. Lira in Ms. Bigus’ apartment and that both of the suitcases they were pulling were brought into the apartment. This conclusion is reinforced by the fact that Mr. Snyder was in apartment 206 when he was arrested later in the day. Finally, I am satisfied that the black suitcase and bag of pill bottles that was seized by police did not belong to Ms. Bigus.
(d) The search of 22 Varna
[104] When Mr. Snyder was arrested and a search warrant was executed at apartment 206, police found nine pill bottles in a plain white plastic Shoppers Drug Mart grocery bag on the seat of the couch in the living room, by the window. Based on the photographs taken before the search the bag was in plain view, but it was tied closed.
[105] Some of these pill bottles were still sealed, and others were open. They contained various medications, including Percocet, Concerta, Oxycodone and OxyContin. As set out in my Similar Fact Ruling, four bottles of the nine were later identified by Ms. Takla as being taken from the SWP. A black suitcase was found just inside the door of apartment 206. It was seized but there is no evidence that it contained any relevant items. No other relevant evidence was located and seized. No firearm or clothing was found.
[106] The significance of my finding that Mr. Lira in fact went to Ms. Bigus’ apartment with the two black suitcases is of course in part, the fact that a bag containing four pill bottles stolen from the SWP was found in the apartment during the search. Ms. Casey argued that this bag was not in plain view but given Mr. Lira went into the building with both black suitcases and that he let Mr. Snyder into the building shortly thereafter and given the bag of pill bottles included bottles of pills stolen from the SWP pharmacy, there is a strong inference that these pills were removed from one of the black suitcases in the apartment when Mr. Lira was present and then put into the white plastic bag. Certainly, it is clear that those pill bottles had to have been brought into apartment 206 by Mr. Snyder and/or Mr. Lira. For these reasons I find it likely that Mr. Lira at least saw this bag of pill bottles at that time although that does not mean, on this evidence alone, that he knew what the bag contained or where the pill bottles were from. This, however, is more evidence linking him to the SWP robbery.
(e) Did Mr. Lira leave 22 Varna prior to 12:50 p.m. on March 1, 2018?
[107] MSS officers remained at 22 Varna to make observations until just before midnight and they resumed very early the following day, March 1, 2018. They did not see Mr. Lira leave the building until 12:50 p.m. on March 1st. Ms. Casey submitted that Mr. Lira left the building during the night because three calls were made on his cell phone, two just before 10:35 p.m. and one at 10:45 p.m. and the signal from his cell phone bounced off a cell tower in the area of 5 Dufresne Court which is almost nine kilometres away as the crow flies from 22 Varna. I note that two of those calls were to 437-996-9420, the same number Mr. Lira started to message at 12:17:30 on March 1, 2018, something I will come back to, although I would say at this point that this fact rebuts the suggestion that someone else was using Mr. Lira’s cell phone at this time.
[108] When Det. Nasser was asked about this evidence, he said that all that it proved was that Mr. Lira’s cell phone left 22 Varna, not that he did.
[109] I have no evidence as to what could explain this evidence. As Ms. Casey submitted, if Mr. Lira was not in possession of his phone at this time then he was not the person who was communicating with Styles. Whether he was the one who was communicating with Styles is not significant but whether Mr. Lira left 22 Varna could be a break in the continuity of the black suitcase as argued by Ms. Casey. If I find that Mr. Lira did leave 22 Varna at about 10:30 p.m., the only reason that might be relevant is if he did not have the Lira Rifle in the suitcase when he arrived at 22 Varna and when he went out at 10:30 p.m. that is when he picked up the Lira Rifle. However, assuming that Mr. Lira brought the black suitcase with him for the purpose of hiding the rifle after he picked it up, I do not believe that the MSS officers who were watching 22 Varna would have missed him if he was pulling the black suitcase when he left. It is likely that it was left behind.
[110] My conclusion is reinforced by all the similarities I have identified between the rifle used in the SWP robbery and the Lira Rifle. What are the chances that Mr. Lira picked up the Lira rifle sometime after he was first seen with the black suitcase and that it would look identical to the rifle that can be seen in the SWP video? The Lira Rifle may not be unique but given its many modifications that is a coincidence that is so unlikely I do not believe it realistically could have occurred. As for the possibility that Mr. Lira picked up the Lira Rifle from someone inside 22 Varna, that in my view is unlikely for the same reason in addition to the fact that I found Mr. Lira went to Ms. Bigus’ apartment. I note that neither of these possibilities were ever argued by Ms. Casey, although she did suggest that when Mr. Lira brought the suitcase to 22 Varna it could have been empty. I have dealt with that submission. As for her submission that someone else in 22 Varna could have put the Lira Rifle in the suitcase while Mr. Lira was out, that in my view is one of those fanciful conjectures that the Crown does not have to rebut.
[111] It is clear that Mr. Lira had the Lira Rifle in the suitcase when he left 22 Varna the next afternoon, as he was followed by MSS officers from the time he left the building and they observed him continuously until his arrest. There is therefore no way that he picked up the Lira Rifle after he left 22 Varna in the morning.
[112] The significance of all of this evidence is that I find that when Mr. Lira was first seen with the black suitcase shortly after the SWP robbery, the Lira Rifle was inside and that it stayed inside until he was arrested the next day with the same black suitcase. I should add that the possibility Mr. Lira just innocently happened to pick up a black suitcase from the area of a garbage bin at the rear of 3886 Bathurst Street that contained the Lira Rifle without knowing it was inside is too fanciful to consider.
[113] As a result, in my view the inescapable and only reasonable inference from these findings is that Mr. Lira was the person with the rifle used in the SWP robbery. There are many other reasons that reinforce this finding that I will now review.
(f) Why did Mr. Lira have the Lira Rifle in the suitcase on March 1, 2018?
[114] Ms. Batorska submitted, based on the SMS messages, that on March 1, 2018 before Mr. Lira was arrested, he was on his way to the McDonalds to meet with the person he had been messaging with named Carlitz, who based on the text messages that started at 1:24 p.m. that day he was supposed to meet at a McDonalds. I find that the purpose of this meeting was to bring the suitcase containing the Lira Rifle to Carlitz. As Ms. Batorska argued, there could be no other reason for Mr. Lira to be travelling on the TTC and carrying around the Lira Rifle in a suitcase to meet someone at a McDonalds. The fact that Carlitz asked whether he should “cut” when he did not hear back from Mr. Lira further corroborates my belief that this was not an innocent meeting among friends.
[115] I find that this is also another reason why Mr. Lira must not have picked up the Lira Rifle after he was first seen with the black suitcase shortly after the SWP robbery. That would mean that he was simply being used by other persons to transport this rifle which makes no sense. Again, there is the fact that the Lira Rifle appears identical to the rifle used in the SWP robbery as well. The only reasonable inference from this evidence in my view is that Mr. Lira used the Lira Rifle in the SWP robbery and was now bringing it to Carlitz. It is Ms. Batorska’s position that this also speaks to the transferability and availability of firearms and Mr. Lira’s ability to acquire a firearm. That is something I will come back to.
(g) The relative height and build of Mr. Lira and Mr. Snyder
[116] The fact that Mr. Lira was seen with Mr. Snyder within about an hour after the SWP robbery is a further piece of circumstantial evidence linking him to the suspect with the rifle in the SWP robbery because there were two suspects who committed that robbery. That in itself is a link, particularly since they were both seen carrying Metro bags that look identical to the bag the man with the bag had during the robbery.
[117] Ms. Batorska asked that I review the surveillance video of the SWP robbery to compare the images of the two suspects in that robbery to the appearance of Messrs. Lira and Snyder as they were seen walking together at this time. She argued that the man with the firearm looks leaner than the other man, even though he is wearing bulkier clothing than the man with the bag. She also argued that the man with the bag looks bulkier, particularly around the mid-section, which can be seen as he is wearing tighter fitting clothing as compared to the man with the firearm. She submitted that the same comparison can be made of how Mr. Lira and Mr. Snyder appear in the photographs and video evidence taken by the MSS officers.
[118] I have considered those submissions and would say that although a relative comparison of the two suspects in the SWP robbery as compared to Messrs. Lira and Snyder shows that in each case the two men are similar in height, I have no way to compare the height of the suspects to Messrs. Lira and Snyder. Furthermore, I am not able to find that Mr. Lira is much leaner than Mr. Snyder in the MSS videos and photographs as the sweatshirt he is wearing is quite loose nor could I conclude that the gunman in the SWP was leaner than the man with the bag, given what the suspects were wearing in the SWP video. That said, there is certainly nothing that is visible in the surveillance video of the SWP robbery that would distinguish the suspects in that robbery from the appearance of Messrs. Lira and Snyder in terms of their height and build.
(h) Was Honda AYHJ014 used in the SWP robbery?
[119] MSS officers continued surveillance of Honda AYHJ014 from the time it was left parked at 490 Wilson Avenue on February 28, 2018 until it was seized by the police and towed at about 3:00 a.m. on March 1, 2018. During that time no one was observed coming back to the vehicle.
[120] As I set out in my Similar Fact Ruling it is admitted that inside this vehicle police found a sealed bottle of Concerta under the front passenger seat that did not belong to the registered owner of the vehicle. The unchallenged evidence of Ms. Takla confirmed that this bottle of Concerta was stolen from the SWP during the robbery on February 28, 2018. There is therefore no doubt that Honda AYHJ014 was connected in some way to this robbery. The suggestion Ms. Casey made that this bottle could have been planted in the vehicle is a fanciful one that in my view the Crown does not need to rebut.
[121] No witness observed a vehicle used by the suspects during the SWP robbery. The theory of the Crown is that they used Honda AYHJ014. Ms. Takla testified the two men came in from the back entrance which she said is towards the garage. Ms. Catay confirmed that they came from the back entrance, but she said that it 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.
[122] Based on the Google Maps images of this location there is at least a surface parking lot behind the building that can be accessed from Underhill Drive. Given that Honda AYHJ014 was a stolen vehicle, given that a bottle of Concerta medication that had been taken from the SWP was found under the passenger seat, and given that Ms. Catay testified that the man with the gun was shoving bottles of medication into his pocket, rather than the Metro bag held by the other suspect, it seems likely that this vehicle was in fact used by the suspects in this robbery. The fact that Mr. Lira was seen loitering around this vehicle and then driving this vehicle with Mr. Snyder in the passenger seat shortly after this robbery gives rise to a very strong inference on its own that Mr. Lira participated in the SWP robbery.
(i) The Google Maps images
[123] There are two Google Maps street view images that were created on Mr. Lira’s cell phone on the day of this robbery, February 28, 2018 at about 8:10 a.m. These images show the front of a four-story building that has a driveway going through the first-floor level on the end of the building and next to this building there appears to be a strip plaza. The second image is a somewhat closer view of this building. There is a close up of the building that DC Smith created that shows the SWP on the first floor of this building, next to the driveway.
[124] The McDonald Images show three images of what is clearly the same building and location with a pin dropped at the address of the SWP at 3410 Sheppard Avenue East and the associated addresses obtained by moving the image of this area range from 3400 to 3445, all showing different angles of the building and plaza.
[125] In light of this evidence, I find that Mr. Lira deliberately created two Google Maps street view images of the building where the SWP is located and the surrounding area on his cell phone, just hours before the robbery of the SWP. There is no evidence that he sent these images to anyone and so it seems likely that he did this for his own purposes. In my view, this is additional evidence from which it can be reasonably inferred that Mr. Lira participated in this robbery as the chances of him creating these Google Maps street views at this time for any other purpose seems very unlikely.
(j) The Chats and SMS messages
[126] I set out in full in my Similar Fact Ruling the Chats between Mr. Lira and Mayra on February 4 and 23, 2018, the day after the SDM robbery, and the Chats between Mr. Lira and Devon Kerr on March 1, 2018, the day after the SWP robbery, that Ms. Batorska relies on as connecting Mr. Lira to one of the suspects in the SDM and SWP robberies. I have considered the meaning of those Chats in connection with the SDM robbery which I will come to. Essentially, I have found that Mr. Lira and Mayra were discussing Mr. Lira selling Mayra Percocet pills and that on February 23, 2018, the day after the SDM robbery, Mr. Lira told Mayra that Mayra could get them “now” and that this meant Mr. Lira had the quantity of Percocet pills to sell to Mayra that Mayra wanted, which could have been anywhere from 150 to 300 pills. These Chats suggest that Mr. Lira was only able to get Percocet pills in a way that was harder than getting “coke” and that he was negotiating to sell them to Mayra.
[127] What is particularly relevant to the SWP robbery is that on February 28, 2018, about three hours before the SWP robbery, Mayra asked Mr. Lira to "find out how much 25 of the 20 mg of addy is", which I find is a reference to Adderall, an ADHD medication[^5]. Mr. Lira responded to the text saying "Cuanto," which means “how many”, to which Mayra repeated that he wanted “25 of the 20 mg”. A few minutes later, at about 12:22 p.m., Mayra texted Mr. Lira and asked him to try and get “percs” as he had another “buyer in bulk” to which Mr. Lira responded: "Aright". I find that this exchange means that Mayra had another buyer in addition to the buyer he had on February 4th and 23rd, that this buyer wanted to buy a large quantity of Percocet pills, that Mayra had bought Percocets before from Mr. Lira and he now wanted more and that he also was looking for Adderall. Ms. Casey submitted that there is no evidence that Adderall was stolen but Concerta was stolen during the SWP robbery which Ms. Takla said was an ADHD medication and she said that the man with the bag asked her to show him where the Percocets were and Percocet pills were stolen from the pharmacy. Ms. Casey argued that it was Mayra who contacted Mr. Lira first but of course if they spoke on the phone, I have no evidence of that. Either way the fact is Mr. Lira wanted to sell Percocet pills to Mayra.
[128] Also relevant are the Chats on March 1, 2018, the day after the SWP robbery, between Mr. Lira and Devon Kerr. As I understand these Chats, Mr. Lira was asking Mr. Kerr if he knew the “clientel” i.e., buyers for Percocets and Mr. Lira was trying to find out a price for Percocets. He told Mr. Kerr to tell his “peeps” a reference to Mr. Kerr’s customers that he had “enuffffff” to sell, again suggesting that Mr. Lira had a large quantity of Percocet pills to sell. Ms. Casey queried why Mr. Lira would be asking Mr. Kerr for a buyer given Mayra had another buyer, but in my view that begs the question of how many pills he had to sell and how quickly he wanted to sell them.
[129] Ms. Casey submitted that on March 1, 2018 Mr. Lira texted someone named Andrew Ubdergove stating: “Yo holla at me if u got perk sales” and that this was Mr. Lira trying to buy Percocet pills. That is possible but it could also have been a question if Mr. Ubdergove had people he could sell Percocets to i.e. sales of Percocets. I find that is more likely, as if Mr. Lira was looking for Percocets he would have asked something along the line asking if Mr. Ubdergove had Percocets to sell.
[130] Finally, there are the SMS messages to someone named Styles 1 (“Styles”) on March 1, 2018, which I note is the person Mr. Lira called on his phone around 10:30 p.m. the night of the the SWP robbery. I find that these messages from Mr. Lira to this person were about the sale of 60 mg codeine phosphate. Ms. Batorska admitted that there is no evidence before me of what codeine phosphate is but submitted that based on the strengths of the Lenoltec and the reference in the messages to 30 mg and 60 mg that it was Lenoltec that was stolen from the SWP. In my view I cannot come to that conclusion based solely on the strengths of the stolen pills, or for that matter the Tylenol with Codeine that was stolen. However, it does suggest he had some sort of drugs to sell other than Percocets. Finally, Styles asked Mr. Lira how many “perks” that Mr. Lira had, suggesting that Styles knew he had some. There was no response to this text, presumably because Mr. Lira had been arrested.
[131] Ms. Batorska submitted that all of these texts show that Mr. Lira had come into some quantity of pills that he was trying to sell, all on the day after the SWP robbery, and that there is no reasonable explanation, but that Mr. Lira was one of the two suspects who committed this robbery. I do not accept that submissions. Ms. Casey is correct that these exchanges between Mr. Lira and Mayra and others do not confirm that he was one of the two suspects who robbed the SWP. As Ms. Casey submitted, considered on their own, it could be that Mr. Lira was buying these pills from another source. Given the timing of these messages, however, I find that based only on these Chats, Mr. Lira at least knew about the SWP robbery and knew what was stolen from that pharmacy and he either had possession of the pills or could get them. Furthermore, given the number of these messages, their timing in relation to the SWP robbery and what was asked for and what was stolen, when these messages are considered with the other evidence I have referred to, in my view cumulatively they are very persuasive evidence that Mr. Lira participated as one of the suspects in the SWP robbery.
The evidence of Ms. Takla as to the appearance of the suspects
[132] I have considered the evidence of Ms. Takla as to her description of the suspects. When asked, she did not recall what the two men looked like, but she agreed that her memory would have been better when she spoke to police and that she told police the truth. When she spoke to police, she described the man with the gun as tall, with a slim build, dark eyes and that he looked “maybe white” with skin lighter than hers. To put that in context she described her complexion as being not white and not dark but in the middle between dark and light – perhaps a wheat colour “tan” or “light tan”. As for the man with the bag, she told police he was shorter and a bit thicker than the man with the gun and definitely blonde, blue eyes and fair.
[133] Ms. Casey did not refer to this evidence in connection with Ms. Takla’s description of the gunman. Given the strength of all the evidence I have referred to that links Mr. Lira to participating as the gunman in this robbery, this evidence from Ms. Takla does not raise a reasonable doubt. Although Mr. Lira is not white, his skin is a very light brown and based on the surveillance videos it is clear that Ms. Takla would not have seen very much given his entire body was clothed, he was wearing gloves and the mask he was wearing covered his entire face except for his eyes and he had a hood pulled up over his head and the top of his forehead.
[134] Ms. Casey does however rely on Ms. Takla’s evidence and her description of the man carrying the bag. The Crown’s theory is that the man with the bag was Mr. Snyder and that of course is whom Mr. Lira was with after this robbery. Mr. Snyder is white but there is no doubt that he does not have blonde hair or blue eyes. His eyes are brown, and his hair is dark brown. This means that Ms. Takla’s evidence in this regard is either incorrect or it means that Mr. Snyder did not do this robbery with Mr. Lira. I find it more likely that Ms. Takla is mistaken. She would have been under considerable stress during the robbery and given that like the gunman, his entire body was clothed, and he was wearing gloves, very little of the face of the man with the bag would have been visible, her description is not reliable. I note that many of the eyewitnesses were clearly wrong in their observations based on the video surveillance evidence, some even thinking both men had guns when that was clearly not the case.
[135] In any event, I do not need to find that it was in fact Mr. Snyder who was with Mr. Lira. It does not impact the main findings I have made against him; only some because they were together and were both carrying Metro Bags. In fact, if the person Mr. Lira was with was not Mr. Snyder, that would strengthen the inference that Mr. Lira must have known about the pills stolen from the SWP that were found in the Honda AYHJ014 and Ms. Bigus’ apartment, as based on the evidence I have he and Mr. Snyder were the only two people who went to Ms. Bigus’ apartment.
Conclusion with respect to the SWP robbery
[136] When I consider all of this evidence I have referred to in connection with this robbery and the events thereafter until Mr. Lira’s arrest, and when I consider cumulatively all the findings I have made, I find that the Crown has proven beyond a reasonable doubt that Mr. Lira was one of the two suspects who robbed Ms. Takla and that he wore a mask during the robbery. Given my findings with respect to the Lira Rifle in Mr. Lira’s possession and the rifle used in this robbery, I also find that the Crown has proven beyond a reasonable doubt that Mr. Lira was the suspect holding the rifle during this robbery. I have come to this conclusion based solely on the evidence relevant to this robbery, without reference to evidence relating to the other charges in the indictment. For these reasons I find Mr. Lira guilty of Counts 16-17.
The SDM robbery – Counts 13-15
The Chats
[137] Turning to the robbery of the SDM at 51 Underhill Drive on February 22, 2018, perhaps the strongest evidence linking Mr. Lira to this robbery are the Chats between Mr. Lira and Mayra on February 4, 2018 and 23, 2018. Those are set out in full in my Similar Fact Ruling.
[138] Ms. Casey argued that the Chat from Mayra on February 4, 2018 was too remote given the next conversation was on February 23rd, but I disagree. I recognize that this chat is about two- and one-half weeks before this robbery but the conversation on February 4th puts the conversation on February 23rd into context and corroborates the conclusions I have come to as to the meaning of that conversation. It also explains what Mayra was referring to by “the 300”. In particular, on February 4th Mayra asked Mr. Lira if he could get 200 “percs” a clear reference to Percocet pills and he then increased it to 300 Percocet pills. Mr. Lira said that the price was usually “3 bucks a pill” but that he would ask “my boy” what the price would be for 300 pills. On February 23, 2018, the day after the SDM robbery, Mayra asked Mr. Lira “are we good for the 300”. Clearly the reference by Mayra to the 300 was a reference to 300 Percocet pills. Although there is no text to support this, given the conversation between Mayra and Mr. Lira that continued on February 23rd about the price for 300 pills, and the fact that the exchange records that there was some issue about what Mayra’s “boy” had told Mayra’s buyer what the price would be, Mr. Lira must have told Mayra at some point after February 4th that the price would be “4 a pop” i.e., $4 a pill.
[139] I find that Mayra was clearly asking Mr. Lira if he could get as many as 300 Percocet pills and that Mr. Lira had someone that he was using to either give him a price or to obtain the pills from - “his boy”. Furthermore, the fact Mr. Lira said that if Mayra’s peeps wanted pills they could “get it now” and if not “they would have to wait” is consistent with Mr. Lira having a large quantity of Percocets to sell. Based on the remaining Chats it is not clear if Mr. Lira was going to sell Mayra 300 or just 200 or 150 pills but either way, he clearly had pills to sell. Although there is no reference to what type of pills, given the Chat on February 4th and the evidence of Ms. Zheng that the man with the bag asked her to show him where the Percocets were and that they stole about 1000 tablets, I find that the pills were clearly Percocets.
[140] Ms. Casey is correct that this exchange between Mr. Lira and Mayra does not confirm that he was one of the two suspects who robbed the SDM. Ms. Casey submitted that it could be that Mr. Lira was buying these pills from another source. Given the timing of these texts, being early afternoon on the day after the SDM robbery, during which 1000 Percocets were stolen, and given that Mr. Lira told Mayra that these Percocet pills were “harder to get than coke” there is a reasonable inference that Mr. Lira got those Percocets from the SDM robbery although that does not mean he was actually one of the suspects. Given the reference to “his boy” I find that if Mr. Lira was not one of the suspects in the SDM robbery, he at least knew about that robbery and knew what was stolen from the SDM and he either had possession of some or all of the stolen pills or could get them. In other words, another reasonable inference could be that Mr. Lira was the middleman and was buying the pills from the persons who robbed the SDM.
Honda AYHJ014
[141] Ms. Batorska submitted that the other evidence that links Mr. Lira to the SDM robbery is my finding that Honda AYHJ014 was used in this robbery and the fact that Mr. Lira was seen driving this vehicle six days later on February 28th. I do not know who stole Honda AYHJ014, but it is admitted that it had been stolen on February 19, 2018, although the theft was not reported until February 23, 2018.
[142] In my Similar Fact Ruling, I found that Mr. Lira’s possession of this vehicle shortly after the SWP robbery was some evidence linking him to the SDM robbery. The “some evidence” test, however, is a very low threshold and there is no other evidence linking Mr. Lira to this vehicle until six days later. Ms. Batorska submitted that I can infer that Mr. Lira was in possession of this vehicle the entire time, but I disagree. Given these robberies were being committed by the same group but that the members of the group who executed the robberies was not constant, I have no evidence as to who had possession of Honda AYHJ014 from the time it was stolen on February 19th, who had possession of it on the day of the SDM robbery or for that matter for the days leading up to the SWP robbery. Without more I find that there are many reasonable inferences that can be drawn from the fact Mr. Lira was in possession of the Honda AYHJ014 on February 28th that are inconsistent with him being in possession of this vehicle at any other time or using it for the SDM robbery.
The Handgun
[143] Based on the surveillance video evidence, the appearance of the handgun in the three robberies where one was used, including the SDM robbery, is the same throughout: a silver or grey handgun. The fact that Mr. Lira was in possession of the Lira Rifle at the time of his arrest raises the question of why he would not have used that firearm if he were the gunman in the SDM and the other robberies where a handgun was used.
[144] 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 as a basis for arguing that the person who used a handgun was not Mr. Lira. As I set out in my Similar Fact Ruling, Ms. Batorska argued that the reason for this change in the firearm from a rifle with a long barrel to a handgun is that after the CIBC-Lloyd Manor robbery, it became apparent to the suspects that the rifle could not easily be concealed and maneuvered and so it was reasonable to modify it, which they did by the time of the last robbery of the SWP. In answer to my suggestion that this theory was entirely speculative, Ms. Batorska submitted 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 28th and find that they are the same.
[145] I have now made the finding that the rifle with a short barrel used in the SWP robbery on February 28th was the Lira Rifle and I am working backwards as suggested by Ms. Batorska. Ms. Batorska’s argument continues that the difference in appearance in the Lira Rifle from the rifle seen in the CIBC-Lloyd Manor robbery is easily explained because we know the Lira Rifle had been modified and painted black. She argued that when the barrel of the Lira Rifle was sawn off, the rifle was also painted black. She acknowledged that the rifle seen in the CIBC-Lloyd Manor 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 an SKS rifle is manufactured. Her theory continues that a handgun was used for three of the robberies because during that time the rifle used in the first robbery was being modified.
[146] As I said in my Similar Fact Ruling, although the Crown’s theory is certainly plausible, in my view even working backwards, it is too speculative. As I will come to, in addition, I have not been able to make a finding that the rifle used in the CIBC-Lloyd Manor robbery was the rifle that was modified resulting in what I have termed the Lira Rifle. In my Similar Fact Ruling I found the change in the type of firearm from a rifle to a handgun in and of itself to be a significant dissimilarity. That dissimilarity did not result in my finding that the same group of men had not committed all of these robberies but the very fact that the Crown’s position is that these robberies were committed by a rotating group gives rise to the strong possibility that other members of the group committed some of the robberies. here is no evidence that Mr. Lira was the leader of the group nor is there any evidence of a reason why he was a necessary participant in all of these robberies. Just as the person with the handgun could have been Mr. Lira, it is just as possible that it was another member of the group who happened to have access to a handgun. Even if the rifle seen in the first robbery was being modified that does not mean that the decision to use a handgun in the meantime was made by Mr. Lira.
[147] In addition, even DC Smith was unable to conclude based on the same evidence I have, namely the video surveillance, that the handgun used in the three robberies where a silver handgun was used was in fact the same handgun, given how common this colour of handgun is and given that he is not able to see any identifying marks on any of the handguns. Even if the same handgun was used in these three robberies. Although I would not expect that a person would change the specific handgun he used for each robbery, there is no reason to think that different persons from the group would not use the same handgun at different times.
[148] Ms. Batorska relied on the fact that Mr. Lira was bringing the Lira Rifle to someone named Carlitz at the time he was arrested as evidence he was able to get access to firearms. That is true but that does not mean that he also had access to handguns or that he in fact got handguns to use in these robberies. In any event, to the extent this demonstrates Mr. Lira’s ability to acquire a firearm, there is no reason to think that this would also not be true for the other persons in this group who were committing these robberies.
[149] Ms. Batorska submitted that the fact that in each robbery the firearms were pointed at people inside the locations robbed, be it a rifle or handgun, and that a firearm was never discharged suggests that it was the same gunman in each robbery and since I have concluded that Mr. Lira was the person with the rifle in the SWP robbery, I can find he was the gunman in each robbery. In my view such a conclusion requires too much of a leap. It is natural if a firearm is used in a robbery that it will be pointed at people to gain control. That does not mean it is unusual that the firearm is not discharged. Although these were factors I relied on to come to the conclusion that it was likely the same group of people committing these robberies, in my view these factors do not suggest it was always the same gunman in each robbery.
[150] I have considered the fact that in the SWP robbery Mr. Lira can be seen holding the rifle with his palm up, not pronated, i.e., in a supinated fashion. I appreciate that the suspect with the handgun can be seen in each of the three robberies holding the handgun in a pronated fashion, with his palm down, not supinated. Even if I found this difference did not matter and that this manner of holding a firearm was linked to what Det. Nasser would call an unusual way of holding a firearm, I could not conclude on this basis alone that the person holding the handguns in any of the robberies was Mr. Lira based on the fact that he held the rifle in a supinated fashion. The evidence I have from Det. Nasser is not reliable enough to come to that conclusion.
[151] Finally, I have also considered the fact that in all of the robberies the gunman held the handgun in his right hand and that in three of the robberies where a handgun was used the gunman can be seen taking the handgun out of the front right-side waist /pocket area as he entered the bank in two of those robberies – the BMO-Provost and CIBC-Finch robberies and in some can be seen putting it back into the front right-side waist/pocket area as he exited bank. This, however, only means that the gunman on those occasions was right-handed, which although consistent with the fact Mr. Lira held the Lira Rifle in his right hand is not significant since any number of people in his group could have been right-handed.
Conclusion with respect to the SDM robbery
[152] There is no evidence that actually links Mr. Lira to one of the two suspects in this robbery. Apart from finding that he is a member of a rotating group that committed these robberies and that he generally looks like he could be about the same height and build as the suspects in this robbery, there is no evidence that suggests he was actually present in the SDM for the robbery.
[153] Given there are only two possible links between Mr. Lira and this robbery, on April 23, 2021, after I advised counsel and Mr. Lira that I had found him not guilty of the counts with respect to the CIBC-Lloyd Manor robbery but that I was finding him guilty of the counts with respect to the SWP robbery, I asked counsel this question:
If I am not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Lira was one of the two men inside the SDM actually committing this robbery, but I do find there is a link because he was driving the stolen Honda AYHJ014 used in this robbery of the SWP six days later on February 28th and because of the WhatsApp chats between him and Mayra on his cell phone, what is your position as to whether or not he is a party to the SDM robbery?
[154] After giving counsel the balance of the morning to consider their response, I was advised by the Crown that if I was not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Lira was one of the two men inside the SDM actually committing this robbery, that the Crown was not going to argue that he was a party to this robbery based on the fact he was driving the stolen Honda AYHJ014 used in this robbery of the SWP six days later on February 28th and/or because of the WhatsApp chats between him and Mayra on his cell phone.
[155] Accordingly, having come to the conclusion that I am not able to find that the Crown has proven beyond a reasonable doubt that Mr. Lira was one of the two men inside the SDM actually committing this robbery, I find that Mr. Lira is not guilty of the counts related to this robbery, Counts 13-15.
The CIBC-Finch robbery – Counts 10-12
[156] With respect to the robbery of the CIBC at 3420 Finch Avenue East, on February 14, 2018, Ms. Batorska made some submissions comparing the appearance of Mr. Lira and Mr. Snyder to the suspects, but for the reasons I have already given, all I am able to conclude is that their appearance is consistent with what can be seen in this robbery.
[157] The only link between Mr. Lira and this robbery that the Crown relies upon are the three Google Maps street view images of the location of this robbery, including a close-up street view of the CIBC that were found by DC Smith on Mr. Lira’s cell phone. These images were created two days before this robbery and very shortly before the images of the BMO location robbed that day. The McDonald Images show one image of what is clearly the same building and location with a pin dropped at the address of the CIBC, 3420 Finch Avenue West. I will come to a submission Ms. Casey made that impacts on whether it was Mr. Lira who created these images, that I did not accept.
[158] In light of the evidence before me, I find it likely that Mr. Lira deliberately created three street view images of the building where the CIBC is located and the surrounding area on his cell phone, two days before the robbery of the CIBC. There is no evidence that he sent these images to anyone and so it seems likely that he did this for his own purposes. In my view, this is some evidence that suggests that he participated in this robbery as the chances of him creating these street views at this time for any other purpose seems very unlikely.
[159] In this case there are no Chats that link Mr. Lira to this robbery. Furthermore, a handgun was used in this robbery and so the same reasons I gave for why I cannot find that Mr. Lira was the suspect who used a handgun in the SDM robbery apply here.
Conclusion with respect to the CIBC-Finch robbery
[160] There is simply no evidence that actually links Mr. Lira to one of the two suspects who actually perpetrated this robbery. Apart from finding that he is a member of a group that committed these robberies and that he generally looks like he could be about the same height and build as the suspects in this robbery there is no evidence that suggests he was actually present in the CIBC for the robbery.
[161] Given the Google Maps link to this robbery that I have referred to, when I asked questions of counsel on April 23, 2021, I also asked counsel this question with respect to this robbery and the BMO-Provost robbery that I will come to:
If I am not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Lira was one of the two men inside either of these banks and was one of the two men who actually committed these robberies, but I do find there is a link between Mr. Lira and these robberies because of the Google Maps images on his cell phone, what is your position as to whether or not he is a party to either of those robberies?
[162] Again, after giving counsel the balance of the morning to consider their response, I was advised by the Crown that if I was not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Lira was one of the two men inside either of these banks, actually committing these robberies, that the Crown was not going to argue that he was a party to these robberies based on the fact there were Google Maps images of these banks on his cell phone.
[163] Accordingly, having come to the conclusion that I am not able to find that the Crown has proven beyond a reasonable doubt that Mr. Lira was one of the two men inside the CIBC actually committing this robbery, I find that Mr. Lira is not guilty of the counts related to this robbery, Counts 10-12.
The BMO-Provost robbery –Counts 7-9
[164] With respect to the robbery of the BMO at 57 Provost Drive, on February 12, 2018, Ms. Batorska also made some submissions comparing the complexion of Mr. Lira and Mr. Snyder to the suspects in this robbery. It is true that as the man with the bag enters the bank you can see that his skin is light coloured, but on that basis alone I could not conclude that this person was Mr. Snyder.
[165] With respect to Mr. Lira, Ms. Batorska relies on what she submitted was Mr. Lira’s distinctive hairstyle of braided hair in corn rows and tied back into a bun. In this regard she relied on a photo of Mr. Lira on his cell phone that was taken three days before this robbery. It shows his hair in four corn rows and a bun at the back of his head. Ms. Casey referred me to the submissions that she made that I referred to in my Charter Ruling, including her arguments that this is not a distinctive hairstyle, that Mr. Lira’s hairstyle changes and was different at the time of his arrest and that the bumps on the top of the man’s head with the firearm and wearing the 3-hole balaclava in this robbery could simply be seams in the balaclava. These are all valid submissions and while they were not enough to overcome the “some evidence” threshold on the similar fact application, they do persuade me that I cannot rely on this evidence to connect Mr. Lira to the man with the gun in this robbery.
[166] First, I agree with Ms. Casey that this is not a distinctive hair style. It is quite common for a man of colour with this type of hair to wear his hair in corn rows and if it is long enough to tie it back in a bun. I do find, however, that although it is impossible to tell if the bumps on the top of the head of the man wearing the balaclava are from corn rows rather than seams or bumps in the fabric, that this man with the gun had his hair tied back in a bun and that it appears that his hair was braided because the bun is quite messy and some hair is sticking up, suggesting that hair was braided and not individual strands. I note however that in the photograph of Mr. Lira on his cell phone taken only three days earlier that the bun was very tidy with no loose strands and that it was sitting higher up on his head. That and the fact this is not a distinctive hairstyle and given there is no other evidence that links Mr. Lira’s appearance to the man with a gun results in my finding that without more, this is not reliable evidence upon which I could find that Mr. Lira was the man with the gun. At its highest, this evidence just means that his hairstyle at the time was consistent with this man’s. The fact, as I will come to, that there were also Google Maps images of the BMO on my Lira’s cell phone is not enough to alter my view.
[167] The other link I have considered between Mr. Lira and this robbery are the Google Maps images on his cell phone. In this case the robbery was late in the afternoon, and shortly before this robbery, around 4:45 p.m. and at 4:12 p.m., three images were created, two of the building that the BMO is in and one of a close up of the BMO. The McDonald Images show four images of what is clearly the same building and BMO with a pin dropped at the address of the BMO, 57 Provost Drive.
[168] Ms. Casey made a very complicated argument in support of her position that Mr. Lira was not in possession of his cell phone at the time these images and the Google Maps images of the CIBC at 3420 Finch Avenue West were created and that his cell phone was being used by someone else because he did not respond as quickly to Mayra as he had at other times. She also referred to a Snapchat exchange which as Ms. Batorska submitted is inconclusive. I did not find Ms. Casey’s argument that Mr. Lira was not using his phone at this time persuasive. It is however not necessary for me to go into any detail to explain why because even if it was in fact Mr. Lira who deliberately created these Google Maps images, which I find likely, based on the answer to my question from the Crown that is not enough.
[169] Whether or not it was Mr. Lira or someone else, the Google Maps images that were created were three street view images of the building where the BMO is located and the surrounding area including a close-up of the BMO on Mr. Lira’s cell phone, about a half hour before the robbery of the BMO. There is no evidence that these images were sent to anyone and so it seems likely that whoever created them did this for their own purposes. In my view particularly given the timing, if it was Mr. Lira who was using his cell phone at this time, this is some evidence that Mr. Lira participated in this robbery as the chances of him creating these street views at this time for any other purpose seems very unlikely.
[170] In this case there are no Chats that link Mr. Lira to this robbery. Furthermore, a handgun was used in this robbery and so the same reasons I gave for why I cannot find that Mr. Lira was the suspect who used a handgun in the SDM robbery apply here.
[171] With respect to this robbery the only other fact that I considered was that a stolen four door Honda Civic, ARZY313 was used in this robbery and Mohd Razzaque saw the suspects get into this car. However, he was not able to provide reliable descriptions of the suspects nor is there any evidence linking Mr. Lira to this stolen vehicle. This evidence therefore only supports my finding in my Similar Fact Ruling that it was the same group of people committing these robberies. It does not provide a link to Mr. Lira.
Conclusion with respect to the BMO-Provost robbery
[172] There is simply no evidence that actually links Mr. Lira to one of the two suspects who perpetrated this robbery. Apart from finding that he is a member of a group that committed these robberies and that he generally looks like he could be about the same height and build as the suspects in this robbery and that his hairstyle was consistent with the man who had the handgun, there is no evidence that suggests he was actually present in the BMO for the robbery. In my view these links are not enough to find that he was one of the two men in the BMO when this robbery was committed.
[173] As already stated, given the Google Maps link to this robbery that I have referred to, I asked counsel the question that I have already set out with respect to the CIBC-Finch robbery and this robbery and I have set out the answer from the Crown.
[174] Accordingly, having come to the conclusion that I am not able to find that the Crown has proven beyond a reasonable doubt that Mr. Lira was one of the two men inside the BMO actually committing this robbery, I find that Mr. Lira is not guilty of the counts related to this robbery, Counts 7-9.
The CIBC-Lloyd Manor robbery – Counts 1-3
[175] With respect to the robbery of the CIBC at 201 Lloyd Manor on January 19, 2018, the only link between Mr. Lira and this robbery is that a rifle that looks like an SKS rifle with a long barrel was used by the gunman and the fact that it was held by the right hand of the gunman in a pronated fashion.
[176] I have already set out and considered Ms. Batorska’s submissions as to why a rifle with a long barrel was used in this robbery and then for the next three robberies a handgun was used, and then the Lira Rifle was used in the SWP robbery, when I considered the use of a handgun in the CIBC-Finch robbery. I have already explained why I have not accepted this submission as the reason why there was a switch in the next three robberies to a handgun. What I still need to explain is why I have not been able to make a finding that the rifle used in the CIBC-Lloyd Manor robbery was the rifle that was modified resulting in what I have termed the Lira Rifle, even though I have now found that the Lira Rifle was used in the SWP robbery.
[177] First, I only concluded that it was highly likely that the rifle in the SWP robbery was the Lira Rifle based on the evidence of DC Smith and my my own visual comparison of the two rifles. I have already set out how I came to that conclusion. It was only after considering other evidence that I found that the Lira rifle was in fact used in the SWP robbery.
[178] Simply put Ms. Batorska’s argument does not work with respect to this robbery because her starting point is not a rifle like the Lira Rifle that had been modified in many different ways to make it look how it appears in the surveillance video of the SWP robbery. This is where the arguments Ms. Casey made about the evidence of DC Smith are important. Even considering the similarities between the Lira Rifle and the rifle used in the SWP robbery, DC Smith could not say for sure that the rifle used in the SWP robbery was the Lira Rifle or even an SKS rifle as opposed to an AK47 or any other type of rifle, because he could not see the unique identification marks he used to identify the Lira Rifle as an SKS rifle.
[179] Furthermore, as I have already explained, DC Smith did admit that aftermarket butt stocks can be purchased and that the rifle seen in the video surveillance of the CIBC-Lloyd Manor robbery could just have a pistol grip without a butt stock rather than a pistol grip with a butt stock that had been cut off. He also said that pistol grips are common and that the type seen on the Lira Rifle can be purchased for other types of rifles and that high-capacity curved magazines are common. Finally, he testified that a rifle can be professionally coated to make it all black, presumably without making the bolt carrier black. In other words, the appearance of the rifle in the CIBC-Lloyd Manor robbery could be the result of only a few modifications to an SKS rifle that DC Smith testified could be readily and commonly purchased for such a rifle. Furthermore, clearly this rifle did not have a short barrel, nor had it been crudely painted.
[180] What this means is that there is no reason to believe that there was anything about the rifle seen in the CIBC-Lloyd Manor robbery that suggests it is in fact the rifle that was modified further to become the Lira Rifle. It is completely speculative to think that it was decided to modify that particular rifle to make it more maneuverable and concealable. Since the group had access to handguns, if that was the concern then presumably handguns would have always been used.
[181] Furthermore, given that this type of rifle has been manufactured in the millions there is no reason to believe that the group did not have access to different rifles and handguns and in particular that they did not have one rifle that was used in the CIBC-Lloyd Manor robbery and the Lira Rifle that Mr. Lira used in the SWP robbery. As Ms. Batorska argued, the fact that Mr. Lira was bringing the Lira Rifle to someone named Carlitz at the time he was arrested, demonstrates the transferability and availability of firearms and Mr. Lira’s ability to acquire a firearm. That presumably would also be true for the other persons in this group who were committing these robberies.
[182] For these reasons I am not able to conclude that the rifle seen in this robbery was the rifle that was modified that became the Lira Rifle.
[183] Even if I had been able to make this finding, I would not have been able to find that it was Mr. Lira using this rifle in the CIBC-Lloyd Manor robbery. The fact that the rifle was held in a pronated position in this robbery in my view would not have been enough. First, as I have already stated, the rifle was not held in a pronated fashion in the SWP robbery but rather it was held with the palm up. Even if it had been, and I accept that this is unusual, on its own it would not be enough to find a link to Mr. Lira. Nor would the fact the rifle in this robbery was held in the gunman’s right hand, for the reasons already stated. This is particularly so when Mr. Lira is accused of being part of a rotating group and he was bringing the Lira Rifle to someone else at the time he was arrested.
Conclusion with respect to the CIBC-Lloyd Manor robbery
[184] There are absolutely no other links between Mr. Lira and the CIBC-Lloyd Manor robbery. There are no Chats or Google Maps-nothing other than a finding that he committed one of the robberies-the SWP robbery and that he was therefore a member of a rotating group of people who committed these robberies. I have explained why in my view his use of the Lira Rifle in the SWP robbery and his possession of that rifle after that robbery is not enough to link him or the Lira rifle to this robbery. It must be remembered that this Court must be careful not to convict Mr. Lira of a robbery just because he is a member of the group committing these robberies.
[185] Accordingly, for these reasons I have concluded that the Crown has not been able to prove beyond a reasonable doubt that Mr. Lira was one of the two men inside the CIBC who committed this robbery. I find that Mr. Lira is not guilty of the counts related to this robbery, Counts 1-3.
Disposition
[186] Mr. Lira would you please stand.
[187] For these reasons I find you guilty of the counts related to the SWP robbery, Counts 16 and 17 and the counts related to your possession of the Lira rifle, Counts 18, 19 and 20.
[188] I find you not guilty of the remaining counts in the indictment.
Spies J.
Reasons Released: April 23, 2021
Edited Reasons released: May 10, 2021
[^1]: 2016 SCC 33 [^2]: 2017 ONCA 696 at para. 21 [^3]: 2020 ONCA 128 [^4]: 2017 ONCA 620 [^5]: No evidence was given on this point but in my view the fact that Adderall is an ADHD medication is really common knowledge that I can take judicial notice of.