COURT FILE NO.: CR-21-40000175-0000
DATE: 20210521
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
IVAN RAMIREZ-CHAVIRA
Linsay Weis, for the Crown
John Collins, for Mr. Ramirez-Chavira
HEARD: April 6, 7, 8 and 9, 2021
M. FORESTELL J.
REASONS FOR DECISION
1. Overview
[1] The accused, Ivan Ramirez-Chavira, pleaded not guilty to two counts of robbery, one count of disguise with intent and one count of assault resist arrest.
[2] The robbery and wear disguise charges relate to the robberies of two banks: a Bank of Montreal branch at 1705 Avenue Road on December 15, 2017, and a Bank of Montreal branch at 5522 Yonge Street on January 26, 2018. Both robberies were captured on video. The person who robbed the bank on December 15, 2017 disguised his face by wearing sunglasses in that robbery. There is no question in this trial that the banks were robbed on those dates and that the person robbing the first bank wore sunglasses. Mr. Ramirez-Chavira’s position is that the Crown has not proved that he was the person who robbed the banks.
[3] The charge of assault resist arrest relates to Mr. Ramirez-Chavira’s arrest for the robberies on April 24, 2018 when it is alleged that he assaulted the police officers who arrested him with the intent to resist that arrest.
[4] Mr. Ramirez-Chavira elected trial by judge alone and the trial in this matter proceeded before me over four days.
[5] The Crown argued that the video evidence of the robberies from the surveillance cameras in the banks when compared to images of Mr. Ramirez-Chavira after the robberies should satisfy me beyond a reasonable doubt that Mr. Ramirez-Chavira committed the two robberies.
[6] The Crown also relied on a comparison between the images of the robber on the bank video surveillance and the appearance of Mr. Ramirez-Chavira on the screen at his trial, which was conducted by Zoom because of the COVID-19 pandemic.
[7] In addition to the video evidence, the Crown relied on a statement allegedly made by Mr. Ramirez-Chavira to the police immediately after his arrest that he “didn’t rob no banks’. This statement was argued to be inculpatory because the arresting officer testified that when Mr. Ramirez-Chavira made the utterance, the officer had not yet told Mr. Ramirez-Chavira that the robberies were related to banks. The Crown relied on that utterance and on Mr. Ramirez-Chavira’s conduct in then attempting to flee from the police as after the fact conduct that is consistent with guilt.
[8] The position of counsel for Mr. Ramirez-Chavira was that the video evidence of the robberies is not of sufficient clarity and quality to allow me to identify the perpetrator of the robberies. He submitted that the statement is not admissible because the Crown has not proved voluntariness. He also argued that Mr. Ramirez-Chavira’s rights under ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated and the statement should be excluded pursuant to s. 24(2) of the Charter.
[9] Counsel for Mr. Ramirez-Chavira also submitted that I should not be satisfied that Mr. Ramirez-Chavira made the statement attributed to him. Even if I am so satisfied, he argued that the statement is not probative of guilt because the police officer’s evidence that he did not tell Mr. Ramirez-Chavira that the robberies related to banks is not reliable.
[10] With respect to the assault resist arrest charge, counsel for Mr. Ramirez-Chavira argued that Mr. Ramirez-Chavira was justified in resisting the arrest and that his resistance resulted from his confusion over the reason for his arrest.
2. Admissibility of the Statement
Evidence
[11] The statement of Mr. Ramirez-Chavira after his arrest when he said, “I didn’t rob no banks” was made during his interaction with the arresting detective, Det. Sedore. It was overheard by Det. Sedore’s partner, DC Knill. The relevance of the statement depends on the evidence of Det. Sedore, that he had not mentioned banks before Mr. Ramirez-Chavira made the utterance.
[12] In order to understand the circumstances of the arrest and the statement it is necessary to review the history of Mr. Ramirez-Chavira’s contact with the police.
[13] Police Constable Mir Lodhi, a 14 Division officer, testified that he took a video-recorded statement from Mr. Ramirez-Chavira at around 2:00 p.m. on February 10, 2018. The statement related to an incident that had occurred at a McDonalds restaurant on February 6, 2018. Mr. Ramirez-Chavira was viewed not as a suspect, but as a victim in the incident. PC Lodhi attended and spoke with Mr. Ramirez-Chavira in his police car which was equipped with video and audio recording equipment. Following the video-recorded interview in the car, PC Lodhi told Mr. Ramirez-Chavira that 52 Division would investigate the incident.
[14] On April 18, 2018, Detective Kevin Sedore of the Hold-up Squad contacted Mr. Ramirez-Chavira and identified himself as an officer from 14 Division who was investigating the assault allegation from February. Det. Sedore told Mr. Ramirez-Chavira that he required a further statement from him. Mr. Ramirez-Chavira agreed to attend 32 Division on April 23rd to meet Det. Sedore. Mr. Ramirez-Chavira did not attend that meeting. After being contacted again by Det. Sedore, Mr. Ramirez-Chavira texted that he had forgotten about the meeting. Det. Sedore texted Mr. Ramirez-Chavira that he had a copy of the video of the assault at McDonalds and that he could give him a copy. Although they had planned to meet later that day, Det. Sedore was unable to meet because of other duties. Mr. Ramirez-Chavira, in his communications with Det. Sedore, gave him the location of his work. The following day, Det. Sedore and his partner, Det. Constable Graham Knill attended at the workplace of Mr. Ramirez-Chavira.
[15] Det. Sedore had fabricated the story of attending to take a statement from Mr. Ramirez-Chavira and to give him the video. Det. Sedore had compared the videos of the robberies to the video of the statement to PC Lodhi and other photographs from police databases. He had concluded that he had reasonable grounds to arrest Mr. Ramirez-Chavira for the bank robberies. His partner, DC Knill, testified that his understanding was that they were attending the workplace of Mr. Ramirez-Chavira under the pretense of taking a statement, but the real purpose was to arrest Mr. Ramirez-Chavira for three robberies.
[16] Det. Sedore and DC Knill attended the address in an unmarked police vehicle. The police vehicle was not equipped with recording equipment. Both officers testified that Hold-up Squad officers were not provided with cars with recording equipment. They did not have any audio or video recording equipment available to them at that time. Det. Sedore testified that he arranged to have a scout car and uniformed officers available in the area to transport Mr. Ramirez-Chavira after his arrest.
[17] When they arrived at the residence where Mr. Ramirez-Chavira was working, Det. Sedore left the car and approached Mr. Ramirez-Chavira. Det. Sedore had a brief conversation with Mr. Ramirez-Chavira about his work and his address and then suggested that they speak in the car. Mr. Ramirez-Chavira agreed to enter the back of the car to speak to Det. Sedore
[18] According to Det. Sedore, DC Knill was with him for the initial conversation. DC Knill testified that he remained in the car to contact the uniform car for transport and only joined Det. Sedore and Mr. Ramirez-Chavira at the end of the conversation.
[19] Det. Sedore and Mr. Ramirez-Chavira entered the car. DC Knill remained outside the car.
[20] Det. Sedore testified that both he and Mr. Ramirez-Chavira entered the backseat of the car. DC Knill recalled that Det. Sedore was in the front seat and Mr. Ramirez-Chavira was in the back.
[21] Det. Sedore testified that when he was in the backseat of the car with Mr. Ramirez-Chavira, he identified himself as a detective with the Hold-up Squad and advised Mr. Ramirez-Chavira that he was under arrest for robbery and disguise with intent. Mr. Ramirez-Chavira said that he did not understand and that he just came to get the video. Det. Sedore said that he would explain more at the station.
[22] Det. Sedore believed that Mr. Ramirez-Chavira was expressing that he did not understand how he had been tricked. He did not believe that Mr. Ramirez-Chavira was expressing a lack of understanding that he was under arrest for robbery.
[23] Det. Sedore then advised Mr. Ramirez-Chavira of his right to counsel and asked if he understood. Mr. Ramirez-Chavira said, “Yeah, I want a lawyer this is bullshit. You lied to me. This ain’t right. You got the wrong guy.”
[24] Det. Sedore asked if he wanted to call a lawyer right now. Mr. Ramirez-Chavira said, “Yeah, this is fucking bullshit man.”
[25] Det Sedore then read Mr. Ramirez-Chavira the caution from his memo book, saying: “You are charged with robbery, disguise with intent. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand? Do you wish to say anything in answer to the charge?”
[26] Mr. Ramirez replied, “Yeah, I got nothing to say.”
[27] According to Det. Sedore, Det. Knill then opened the rear passenger door and Det. Sedore told DC Knill that he had arrested Mr. Ramirez-Chavira for robbery, disguise with intent and that he had given Mr. Ramirez-Chavira his rights to counsel and caution and he understood. Mr. Ramirez-Chavira then said, “I didn’t rob no banks.” Det. Sedore said that he had not mentioned banks. He told Mr. Ramirez-Chavira to exit the car and put his hands behind his back. Det Sedore exited the driver’s side door and Mr. Ramirez-Chavira exited the rear passenger side door.
[28] DC Knill in his testimony described overhearing Mr. Ramirez-Chavira say “I didn’t rob no banks”. He testified that he opened the front passenger door and asked Det. Sedore what was going on or how it was going. DC Knill testified that he opened the door because a number of minutes had passed since Det. Sedore and Mr. Ramirez-Chavira had entered the vehicle. DC Knill was giving directions to the uniform officers to come to the address. He was curious as to why it was taking so long. Det. Sedore told him that he had just given Mr. Ramirez-Chavira his rights to counsel and that he understood. At that point, DC Knill said that he heard Mr. Ramirez-Chavira say, “I didn’t rob no banks.” DC Knill grabbed his handcuffs and shut the front passenger door. He then opened the rear door and Mr. Ramirez-Chavira stepped out. DC Knill did not hear Mr. Ramirez-Chavira or Det. Sedore say anything further.
[29] DC Knill grabbed the arm of Mr. Ramirez-Chavira but Mr. Ramirez-Chavira broke free and ran. Both officers tackled Mr. Ramirez-Chavira. A struggle ensued. During that struggle Mr. Ramirez punched, kicked and flailed. At one point he tried to kick Det. Sedore who was holding him from behind. Mr. Ramirez-Chavira was ultimately subdued and handcuffed.
[30] Mr. Ramirez-Chavira complained that he was injured. DC Knill called an ambulance. The ambulance arrived at about the same time that uniform officers also arrived.
[31] DC Knill and Det. Sedore both testified that they did not say anything further to Mr. Ramirez-Chavira from the time that he was subdued until he left in the ambulance.
[32] PC Pathak took over custody of Mr. Ramirez-Chavira and accompanied him to the hospital. I ruled that the utterances at the hospital formed part of the statement of Mr. Ramirez-Chavira. It is an agreed fact that at the hospital, Mr. Ramirez made utterances to PC Pathak which PC Pathak recorded as follows:
Why three Robberies. He went to McDonalds because he was broke and hungry. Adv. ML he doesn’t need to say anything. Adv. him of caution. ML adv. No, No I need to say this. I don’t know why three robberies. I only jumped the counter because I was hungry and ate burger and fries. And then the manager punched him. He had stitches on his lip. He is suing them. Adv. he was broke. But doesn’t think this should be three robberies. ML adv. he has a GF. About to have a baby. Planning on moving in together May 1st. Was hit by a bus. Has memory loss. Has had many concussions. Adv. Self-medicates himself with alcohol and weed.
Analysis: Voluntariness
[33] In R. v. Gauthier,[^1] the Court held that on a voir dire to determine whether a statement made to a person in authority is admissible, a trial judge is required to decide: (1) whether there is some evidence that it was made; and (2) whether it was given voluntarily.
[34] Counsel for Mr. Ramirez-Chavira has argued that the statement was not made.
[35] On a voir dire into voluntariness, the question that I must determine is whether there is some evidence that the statement was made. For the purposes of admissibility, I am satisfied that there is some evidence that the statement attributed to Mr. Ramirez-Chavira was made. Det. Sedore and DC Knill both testified that Mr. Ramirez-Chavira said the words attributed to him.
[36] Det. Sedore testified that he did not speak of banks before the words were spoken by Mr. Ramirez-Chavira. Det. Sedore testified that he only advised Mr. Ramirez-Chavira that he was under arrest for robbery and wear disguise. In the subsequent part of Mr. Ramirez-Chavira’s statement made at the hospital, Mr. Ramirez-Chavira refers to three robberies. DC Knill testified that Det. Sedore was in the car with Mr. Ramirez-Chavira for several minutes before DC Knill opened that door to see what was taking so long. I find that Det. Sedore’s evidence with respect to what he told, or did not tell, Mr. Ramirez-Chavira about the robberies is not reliable. However, the probative value of the statement is a matter for me to determine as the trier of fact separate from admissibility concerns.
[37] The next issue for me to determine on the voir dire into voluntariness is whether the Crown has satisfied me beyond a reasonable doubt that the statement was made voluntarily.
[38] There is no issue that the accused in this case had an operating mind at the time of the statement. There is also no argument made that the statement was the result of threats, inducements or oppression.
[39] Counsel for the accused has argued that police obtained the statement through trickery. In R. v. Oickle,[^2] Justice Iacobucci stated: “There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.”
[40] There was trickery in this case, but that trickery was used to entice the accused to attend a meeting so that the police could arrest him. The police did not continue to deceive Mr. Ramirez-Chavira after the arrest and in order to obtain a statement. The trick in this case did not undermine voluntariness or violate Mr. Ramirez-Chavira’s right to silence. The trick, even if it had some impact on Mr. Ramirez-Chavira speaking following his arrest, could not be said to be so appalling as to shock the community.
Conclusion on Voluntariness
[41] I am satisfied beyond a reasonable doubt that the statement was made voluntarily.
Charter Violation
[42] Mr. Ramirez-Chavira also argues that his rights under ss. 10(a) and 10(b) of the Charter were violated.
[43] The s. 10(a) violation is said to arise because Mr. Ramirez-Chavira did not know the reason for his arrest. The police had told him that they wished to discuss an incident at a McDonalds Restaurant in which Mr. Ramirez-Chavira was allegedly assaulted. When the accused was arrested for robbery, he expressed confusion about the reason for the arrest. Det. Sedore simply told him that he would explain more at the station.
[44] The Supreme Court of Canada, in Regina v. Evans,[^3] in defining the scope of the right under s. 10(a) of the Charter wrote: “When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).”
[45] While I accept that Mr. Ramirez-Chavira expressed confusion about the precise circumstances of the alleged offences, he was provided with sufficient information to identify the nature of the offence. His responses demonstrated an awareness that he was being arrested for robbery. The details of each robbery may not have been conveyed to him but that was not required. He was given enough information to permit him to make a reasonable decision about submitting to the arrest and the exercise of his right to counsel.
[46] I find no s. 10(a) violation.
[47] I do, however, find that there was a violation of the accused’s s. 10(b) rights. After Mr. Ramirez-Chavira clearly expressed the wish to speak to a lawyer, Det. Sedore read him the standard caution and then asked him if he had anything to say.
[48] In R. v. G.T.D.,[^4] the Alberta Court of Appeal held, on essentially the same fact scenario, that the accused’s right to counsel was breached. A majority of the Court of Appeal would not have excluded the statement in that case. Justice Veldhuis dissented and would have excluded the statement. She noted that the Crown had the opportunity to call evidence about the training and policies of the police but did not do so. A majority at the Supreme Court of Canada held that the statement should have been excluded, substantially for the reasons of Justice Veldhuis.
[49] G.T.D. was released on February 14, 2018. The arrest in this case was made two months later, on April 18, 2018. Although he was not asked about his awareness of the case, I infer from the evidence of Det. Sedore that he was unaware that he should not ask a detainee if they wish to say anything if that person has expressed a wish to exercise their right to counsel and has not yet been afforded an opportunity to do so. In fact, it appeared from Det. Sedore’s responses that even three years after the decision in G.T.D. he remains unaware of the decision.
[50] It is clear from the evidence in this case that there was a violation of Mr. Ramirez-Chavira’s s. 10(b) rights.
Section 24(2)
[51] In deciding whether to exclude the evidence of the statement I must consider whether admitting evidence would bring the administration of justice into disrepute. To decide what effect admitting or excluding the statement could have on the reputation of the administration of justice, R. v. Grant[^5] sets out the three avenues of inquiry that I must consider: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the state conduct on the Charter-protected interests of the accused; and (3) society's interests in having the criminal allegations adjudicated on their merits. The balancing process does not lend itself to "mathematical precision", and each case requires its own analysis and its own balancing of competing interests.
[52] In considering the seriousness of the Charter-infringing conduct I adopt the reasoning of Justice Veldhuis in G.T.D. where she wrote:
82 It is not the arresting officer's behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer's good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R. v. Harrison, 2009 SCC 34 (S.C.C.) at para 25, [2009] 2 S.C.R. 494 (S.C.C.); R. v. Heng, 2014 ABCA 325 (Alta. C.A.) at paras 10-11, (2014), 580 A.R. 397 (Alta. C.A.); R. v. McGuffie, 2016 ONCA 365 (Ont. C.A.) at para 67, (2016), 131 O.R. (3d) 643 (Ont. C.A.).
83 There is every reason to conclude the breach was systemic. The officer read the caution from a standard EPS-issued card. There was no suggestion that the officer's training (to read directly from the card after every arrest) was unusual. The Crown had ample opportunity to call further evidence about EPS training or policy, but chose not to do so.
84 During oral argument, counsel for the respondent advised the Court that EPS continues to provide its officers with the same standard caution card, which still ends with the question ‘do you wish to say anything?’ As counsel for the respondent candidly acknowledged, "probably right now in Edmonton, they're reading this very card."
85 Courts must take institutional or systemic Charter breaches seriously, and keep in mind that ‘for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge’: Grant at para 75. Whether a s 10(b) breach was the result of a ‘general policy,’ as opposed to a ‘one-off decision,’ is ‘highly relevant to an assessment of the seriousness of the breach’: Heng at para 11. When a Charter breach is systemic, it is not only the police conduct in an individual case from which a court hopes to dissociate itself. The court also aims to dissociate itself from the many other occasions when the police used the same unconstitutional practice.
86 If the police act on a mistaken understanding of the Charter because the law is unsettled, such uncertainty reduces the seriousness of a Charter breach: R. v. Cole, 2012 SCC 53 (S.C.C.) at paras 86-87, [2012] 3 S.C.R. 34 (S.C.C.); R. v. Saeed [2016 CarswellAlta 1145 (S.C.C.)] at para 126. I recognize there was some uncertainty here. There was little authority directly on point. Two trial courts found that asking a similar question did not breach the duty to ‘hold off’’: Simpenzwe (2009); Charles (2011). A third reported decision concluded that asking a similar question violated s 10(b): R. v. Hector, 2014 ONSC 2037 (Ont. S.C.J.) at para 22. Of course, Hector was decided after the appellant was arrested, so EPS could not have been aware of this decision at the time. EPS does not appear to have revisited the wording of its caution since 2014, however. Because the arresting officer had followed the same practice for a decade, it seems unlikely that EPS considered any of these authorities when it developed its caution or training.
[53] In the case before me, as in G.T.D., there is no evidence that training or policies have changed as a result of the decision in G.T.D. The Crown points to the fact that the arrest in this case occurred a mere two months after the decision of the Supreme Court in G.T.D. and argues that this mitigates the seriousness. I disagree. As pointed out by Justice Veldhuis in G.T.D., there have been reported court decisions in this province since 2014 which held that the question “do you have anything to say” violated the s. 10(b) rights of an accused who had asked to speak to a lawyer.
[54] I find that because of the serious systemic issues the first Grant factor weighs in favour of exclusion.
[55] The second Grant factor is the impact of the breach on the Charter-protected rights of the accused. The Crown argues that the statement was made spontaneously and not elicited by the question of the officer. The accused had already said that he had nothing to say. He appeared to be aware of his right to remain silent.
[56] At paragraph 96 of Grant, the Court addressed spontaneous statements:
[P]articular circumstances may attenuate the impact of a Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter. For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach (see R v Harper, 1994 CanLII 68 (SCC), [1994] 3 SCR 343), the impact of the breach on the accused's protected interest in informed choice may be less. ...
[57] In this case, there was very little time between the asking of the improper question and the making of the statement. I appreciate that the accused first said that he had nothing to say, but that statement was followed quickly with the statement in issue in this case. This not a case where it “can be confidently said that the statement in question would have been made notwithstanding the Charter breach.”
[58] I find that the second Grant factor also weighs in favour of exclusion.
[59] The third Grant factor requires a consideration of society’s interest in the adjudication of the case on the merits. As set out at paragraph 81 of Grant, the reliability of the evidence is an important factor in this line of inquiry: “The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth.”
[60] The importance of the evidence to the prosecution’s case and the seriousness of the offence are also important considerations. There is no question that the bank robberies in this case are serious offences.
[61] The importance of the evidence to the prosecution’s case is a more complex issue. The probative value of the evidence of the statement depends on its context. Det. Sedore testified that he had not mentioned banks. However, there is no recording of the interaction between the accused and the officer. Det. Sedore was alone in the car with the accused. Det. Sedore testified that he did not mention the number of robberies alleged (that number was three) and no other officer spoke to the accused about the offences. At the hospital a short time later, the accused asked another officer repeatedly, “why three robberies”. Det. Sedore’s evidence that he gave no detail to the accused beyond advising him that he was under arrest for “robbery and wear disguise” is not reliable. In light of the subsequent statement and the length of time that Det. Sedore spent in the car with Mr. Ramirez-Chavira, I would infer that more information was given to Mr. Ramirez-Chavira about the nature of the offences alleged. As a result, the statement is of little value to the prosecution.
[62] I find therefore that the third Grant factor weighs somewhat in favour of admission of the evidence because of the seriousness of the offences but that weight is attenuated by the limited probative value of the evidence in the circumstances.
[63] Balancing the three Grant factors, I have concluded that the statement should be excluded.
3. Has the Crown proven beyond a Reasonable Doubt that the Accused was the person who committed the Bank Robberies?
[64] The Bank of Montreal at 1705 Avenue Road was robbed on December 15, 2017 by a man who presented a note to a teller. The Bank of Montreal at 5522 Yonge Street was robbed in a similar fashion on January 26, 2018.
[65] Allison Murray was the teller who dealt with the robber in the first robbery on December 15, 2017. She testified that a man entered the bank, waited in line and then approached her wicket. He said that he was there to make a deposit. He then retrieved a note from his wallet. The note said, “I want loose bills! You have 30 seconds.”
[66] Ms. Murray believed that she said it would take a minute. She used her computer to send a Skype message to a colleague saying that she was being robbed. Ms. Murray obtained $2,000.00 in $100 bills from the cash dispenser beside her wicket and put the bills in an envelope that she gave to the man. As she slid the envelope of cash to the man, he asked how her day was going and she responded that it had just got a lot worse. The man spoke softly and had no accent.
[67] The man put the envelope into the backpack he was carrying and he left quite quickly. She did not see any weapons and he did not mention any weapons.
[68] Shortly after the robbery, Ms. Murray described the man to police as: Hispanic/black or mixed race. She also described him as either African descent or mixed African/Hispanic. She described him as having dark brown skin.
[69] Maggie Li was the teller who was robbed in the January 26, 2018 robbery. She testified that the man came to her wicket and she welcomed him. He handed her a note written on a small piece of cardboard. The note said “$1,000.00 you have one minute.” The note was handwritten and messy. Ms. Li asked him if it was a 1 or a 5 on the note. The man confirmed that it was 1,000 and then he reached over and grabbed the note back. Ms. Li tried to hit the button that would lock the machine so that it would only generate $500. She had difficulty locking the machine. The assistant manager walked past, and Ms. Li told the assistant manager in Cantonese that they were being robbed. The assistant manager assisted in locking the machine. The man told her that she could not get help and Ms. Li said that she just needed a quick authorization.
[70] Ms. Li obtained the $500 from the machine and asked the man if he would like it in an envelope. He said “yes”. She put it in an envelope, gave it to him and he left.
[71] Ms. Li gave a description of the man to the police shortly after the robbery. She described him as having a chubby face and very tanned skin. She also described his clothing. He wore a Raptor’s jersey under a black leather jacket. The jacket was on the baggier side. It was not fitted.
[72] The robberies of the two banks were captured on video surveillance.
[73] The bank video from the first robbery is of reasonably good quality but the face of the robber is obscured by a peaked cap, sunglasses and upturned collar. The quality of the video from the second robbery from the camera at the teller’s wicket is very poor.
[74] In both robberies the video evidence shows the person who robbed the banks as he enters, as he stands at the counter, and as he leaves. In both robberies the man wore a baseball type cap (although they were different caps). In the first robbery, the person wore sunglasses throughout the robbery. In the second robbery, the person entered wearing sunglasses and then took those glasses off.
[75] In the first robbery, the man wore a baggy khaki coloured winter jacket and appears to have layers of clothing under the jacket. The collar of the jacket comes up around the sides of his face. In the second robbery, he enters the bank with sunglasses, a peaked cap and a hood up over his cap. The hood is quilted. He appears to wear a leather jacket over a Raptors jersey.
[76] In both robberies, the man has facial hair. He has hair above his upper lip, extending from the middle of his lower lip to his chin and around his chin and jawline.
[77] On February 10, 2018 — 15 days after the second robbery — PC Lodhi interviewed Mr. Ramirez-Chavira in the back seat of his police cruiser. The interview is captured on video. The video quality is poor because of the lighting, placement of the camera and the fact that Mr. Ramirez-Chavira is turned away from the camera through most of the video. At one point he turns toward the camera and moves closer to it. It appears that he is showing an injury. He pulls his lip down with his hand and shows the inside of his mouth. As a result, the image of his face is distorted when he is facing the camera.
[78] In spite of the poor quality of the video I can see that Mr. Ramirez-Chavira appears to be wearing a loose fitting leather jacket with a zipper, worn over a sweater or jacket with a quilted hood. Some features on the leather jacket, including a zipper and double seams at the shoulders appear to be the same as features on the jacket worn by the robber in the second robbery. The location of the facial hair on Mr. Ramirez-Chavira’s face on February 10, 2018 is similar to that of the robber in both robberies, but Mr. Ramirez-Chavira’s facial hair appears heavier or thicker than that of the robber. I recognize that this could be due to the passage of time.
[79] In addition to the February 10, 2018 video, I have photographs of Mr. Ramirez-Chavira taken after his arrest on April 24, 2018. These still photographs are of good quality.
[80] There is a resemblance between the images of Mr. Ramirez-Chavira from his arrest photographs and from the February 10, 2018 video as compared to the images of the robber in the video surveillance from both robberies. The similarities, however, are fairly generic. Mr. Ramirez-Chavira has full lips and a fairly wide nose. The man who robbed the banks has similarly full lips and a wide nose. As I have already indicated, the facial hair of Mr. Ramirez-Chavira on February 10, 2018 is similar to that of the robber, but it is fuller or thicker. I cannot assess the skin tone of the person in the robberies as compared to Mr. Ramirez-Chavira on February 10, 2018 because of the poor quality of the February 10, 2018 video and the poor quality of the video from the January 26, 2018 robbery.
[81] The Crown also invites me to compare the bank videos to Mr. Ramirez-Chavira’s appearance at the time of trial. This trial was conducted by videoconference.
[82] The Zoom images of Mr. Ramirez-Chavira at trial were of fairly good quality. However, Mr. Ramirez-Chavira’s appearance has changed in the almost three years since his arrest. He no longer has facial hair. His skin tone could not be discerned on the Zoom video because it varied depending on the lighting over the course of each day and depending on the background.
[83] I have carefully compared all of the images. As the Supreme Court of Canada directed in R. v. Nikolovski,[^6] before relying on video evidence alone to identify an accused person as the perpetrator of an offence, I must consider carefully whether the video is of sufficient clarity and quality and shows the person for a sufficient time to enable me to conclude that identification has been proven. The video evidence in this case is not of sufficient clarity and quality to allow me to identify Mr. Ramirez-Chavira as the person who robbed the banks.
[84] I am able only to find a resemblance between Mr. Ramirez-Chavira and the man who robbed the banks. With this finding of a resemblance I have considered the other circumstantial evidence in this case.
[85] I find that the clothing worn by the robber in the second robbery is very similar to the clothing worn by Mr. Ramirez-Chavira on February 10, 2018, 15 days after the robbery. I am not able to find that the clothing — a black leather jacket layered over a quilted and hooded garment — is particularly distinctive. A black leather jacket is not a distinctive piece of clothing. Reinforced seams on the shoulders of a coat or jacket are not unusual or distinctive, nor is a zipper. I cannot find that layered clothing, hooded clothing or quilted ski jacket type hoods are unusual in Toronto in the winter. I have however, considered the similarity of the clothing as a further piece of circumstantial evidence going to identity.
[86] I have also considered the conduct of Mr. Ramirez-Chavira in running from the police when he was arrested for robbery in April of 2018. This after-the-fact conduct is of little value. Mr. Ramirez-Chavira appeared to be confused and under the impression that his interaction with the police related to an incident at a McDonalds (when he jumped over the counter and took food and then was struck by an employee). His conduct in resisting arrest is equally consistent with an attempt to escape arrest and prosecution for the McDonalds incident as it is with an attempt to avoid arrest and prosecution for the bank robberies.
[87] The evidence in this case is wholly circumstantial. Having carefully considered the evidence and the available inferences, I am not satisfied beyond a reasonable doubt of the identity of Mr. Ramirez-Chavira as the perpetrator of either robbery. The evidence of the resemblance of Mr. Ramirez-Chavira to the robber and the similar clothing worn by Mr. Ramirez-Chavira close in time to the second robbery is not sufficient to satisfy me beyond a reasonable doubt of the guilt of Mr. Ramirez-Chavira.[^7] I therefore find him not guilty of the robberies and not guilty of the charge of wearing a disguise (Counts 1-3 on the indictment).
4. Has the Crown Proven Beyond a Reasonable Doubt that the Accused Committed the offence of Assault Resist Arrest?
[88] I am satisfied beyond a reasonable doubt of Mr. Ramirez-Chavira’s guilt on the charge of assault resist arrest. Earlier in these reasons I set out the evidence of police, that Mr. Ramirez-Chavira broke free from DC Knill and fled after he was told that he was under arrest. When the police tackled Mr. Ramirez-Chavira, he punched, kicked and flailed at Det. Sedore. I accept the evidence of the police witnesses, that Mr. Ramirez-Chavira struggled and struck out at Det. Sedore.
[89] I am satisfied beyond a reasonable doubt that Mr. Ramirez-Chavira applied force to Det. Sedore with the intent to resist arrest. Mr. Ramirez-Chavira had been advised of his arrest moments before he fled from the officers. I have not found Mr. Ramirez-Chavira guilty of the robberies in this case, but the police had reasonable grounds to arrest him for the robberies. While Mr. Ramirez-Chavira was likely confused and upset by the arrest he had no right to resist the valid arrest.
[90] I find Mr. Ramirez-Chavira guilty of assault with intent to resist arrest (Count 4).
Forestell J.
Released: May 21, 2021
COURT FILE NO.: CR-21-40000175-0000
DATE: 20210521
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
IVAN RAMIREZ-CHAVIRA
REASONS FOR DECISION
M. Forestell J.
Released: May 21, 2021
[^1]: 1975 CanLII 193 (SCC), [1977] 1 S.C.R 441 (S.C.C.) (S.C.C.)
[^2]: (2000), 2000 SCC 38, 147 C.C.C.(3d) 321 (SCC) at pp 74-75
[^3]: 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para. 35
[^4]: R. v. G.T.D., 2017 ABCA 274; 2018 SCC 7
[^5]: 2009 SCC 32 at para. 71
[^6]: 3 S.C.R. 1197, at para. 30
[^7]: The Crown brought an application to rely on similar fact evidence between Counts. Because of my conclusion that I cannot be satisfied of Mr. Ramirez-Chavira’s identity as the perpetrator of either robbery, it is unnecessary for me to address the similar fact application.