Court File and Parties

Court File No.: CR/20-167 Date: 2021/06/21 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Crown

• and - Erik Kalanyos, Accused

Counsel: W. Milko, on behalf of the Crown Attorney B. Pearson for the Accused

Heard: April 19, 20, 21, 22, 23 and 26, 2021

Before: A.J. Goodman J.

Reasons for Judgment

Introduction:

[1] The accused, Erik Kalanyos, (“Kalanyos”) is charged with seven counts related to an alleged robbery of a pharmacy that occurred on January 15, 2019, in the City of Hamilton.

[2] The Crown called 12 witnesses, the majority of whom were police officers. The defence elected not to call any evidence. During the Crown’s case and for brief oral reasons placed on the record, I allowed the Crown’s Leaney application.

Positions of the Parties:

[3] The Crown submits that while the accused did not directly participate in the armed robbery, the charges have been made out and the accused is an active party to the offence. The Crown says that the accused was the planner and organizer of the robbery and was implicated with the other men in obtaining the prescription drugs that were later traced to the vehicle he was operating. The Crown submits that the totality of the evidence establishes the charges beyond a reasonable doubt.

[4] The defence submits that this court ought to be left with a reasonable doubt as to the charges along with the inferences the prosecution advances in this case. There is a lack of cogent evidence that raises a doubt regarding the accused’s identity and participation in the robbery in this case. The Crown’s case is entirely circumstantial and is premised on conjecture. Even if the accused is connected to the Dodge Charger in question, the evidence falls short of establishing his culpability in the robbery as a party to the offence.

[5] The defence submits that irrespective of this court’s findings on the robbery charges, for which proof beyond a reasonable doubt is specifically rejected, there is no evidence to establish the accused’s possession or use of the firearm used in the robbery and located by police shortly thereafter at or near the Dodge Charger in Stoney Creek. A reasonable inference is that the accused, knowing about an outstanding warrant for his arrest, was fleeing from apprehension by the police.

[6] The defence submits that the evidence has not established the accused’s knowledge of the firearms and acquittals must be registered.

Legal Principles:

[7] All of the evidence must be considered by the trier of fact. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to disprove the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. The defence was not required to substantiate their theory of the case. The burden of proving guilt of the accused lies upon the prosecution throughout the trial. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of the offence charged against him.

[8] Most, if not all of the evidence adduced by the Crown relating to this accused was circumstantial evidence. The relationship between circumstantial evidence and proof beyond a reasonable doubt was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-38.

At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff'd without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: [Citations omitted]. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt […]

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.) , at pp. 205 and 211, per Middleton J.A., aff'd 1938 CanLII 7 (SCC), [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII) , at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities … "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

See also the discussion in R. v. S.B., 2018 ONCA 807, 143 O.R. (3d) 81 at paras. 122-124.

Reasonable Doubt:

[9] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities yet less than proof to an absolute certainty."

[10] The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable or likely guilt.

[11] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.

[12] It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts, and similarly the trier can accord different weight to different segments of the evidence that is accepted.

Agreed Statement of Facts:

On January 15, 2019 at about 9:00 p.m., a white Nissan Altima four-door sedan pulled up in front of the Shoppers Drug Mart located at 963 Fennell Avenue East in the City of Hamilton. Three suspects exited the vehicle while the driver remained, with the engine running.

The store was still open to the public as part of regular business hours. There were a small number of customers in the store as well as six employees.

All three males were dressed in dark clothing with their faces masked with balaclavas, wearing black gloves. They entered the store while respectively brandishing a “military-style” black rifle, a handgun and a taser.

Several employees fled to safety in a rear office. The front cashier, Jennifer SPENCER, was ordered by the suspects to the rear of the store. Once at the rear of the store in the pharmacy area, the suspects ordered Ms. SPENCER, Ruth LAHIE, the pharmacist and the pharmacy technician, Sheena CRONE to lie face-down on the floor.

Ms. CRONE was ordered up to her feet and directed to unlock the narcotics safe. She was ordered to get “fentanyl and oxys”. She complied and emptied approximately one hundred bottles of narcotics into a large “heavy-duty” garbage bag. While she did so, the suspect holding the rifle placed the muzzle against her neck. The suspect with the taser was “sparking” it, causing visible electrical current.

As Ms. CRONE filled the garbage bag being held by one of the suspects, she deposited a 3SI GPS tracking device, concealed in a small box which outwardly appeared to contain narcotics. Another of the suspects demanded that the till on the cash register in the pharmacy be opened. He removed an amount of cash estimated to be about several hundred dollars.

During this time, the third suspect entered the rear office of the pharmacy and damaged the video surveillance system, destroying the footage which would have otherwise captured the robbery.

In possession of the cash and the garbage bag filled with narcotics and the tracker, the suspects ran out of the store and entered the waiting Nissan Altima. It then sped out of the parking lot.

None of the victims of the robbery were physically injured.

On the date of the alleged offences, Kalanyos was bound by the following court orders: Section 110 Order made under the Criminal Code of Canada, prohibiting the possession of firearms, made by Justice A. Leitch on September 22, 2016. Section 110 Order made under the Criminal Code of Canada, prohibiting the possession of firearms, made by Justice T. Culver on August 28, 2014. Section 109 Order made under the Criminal Code of Canada, prohibiting the possession of firearms, made by Justice M. Zivolak on July 24, 2017. Probation Order made by Justice M. Zivolak on July 24, 2017, requiring that he keep the peace and be of good behavior.

The .22 LR semi-automatic rifle located and seized by the Hamilton Police Service in relation to this matter was a loaded, prohibited firearm. The stock had been removed, rendering the overall length shorter than that permitted under the Regulations, causing it to be classified as a prohibited firearm. Had the stock not been removed, it would have been classified in its original condition as a non-restricted firearm.

Erik Kalanyos has never possessed an authorization or license under which he may possess any firearm.

Police officers with the Hamilton Police Service downloaded the contents of seized phones related to this investigation. The downloaded content was then made available for examination. Included in this were an iPhone seized in proximity to a Dodge Charge on the side of the QEW Highway and a Samsung phone seized from witness Arasn SMKO.

The narcotics seized by the Hamilton Police Service in this investigation were those stolen during the course of the robbery. The owner of them was Wassim HOUNEINI, the pharmacist who owned the Shoppers Drug Mart. The cost to the pharmacy was $5,100.00. The retail value upon dispensing to a patient was about $100,000.00.

NICHE or “mugshot” photos in this matter accurately depict images of Erik Kalanyos and Janai DOUSE, taken by the Hamilton Police Service on the date indicated on the photos.

Leaney Application: R. v. Leaney, [1989 CanLII 28 (SCC)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii28/1989canlii28.html), [1989] 2 SCR 393

[13] As mentioned, at the conclusion of the “Leaney voir dire”, I granted the Crown’s application and admitted the recognition evidence. I agreed with the Crown that the witness is in a better position than the trier of fact to identify the person from the actual store surveillance video footage.

[14] Non-expert, lay opinion evidence that the witness recognizes the image of a person seen in a photograph or video as the accused may be admissible in certain circumstances: R. v. Berhe, 2012 ONCA 716,113 O.R. (3d) 137, at para. 13, R. v. Brown, (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330, (Ont. C.A.), at para. 39.

[15] To be admissible, the witness must have a prior acquaintance with the accused such that he/she is in a better position than the trier of fact to identify the accused depicted in the photograph or video evidence on a balance of probabilities: see R. v. Hudson, 2020 ONCA 507, at para. 31.

[16] In establishing “prior acquaintance,” I must assess whether the potential witness is sufficiently familiar with the person being identified to have “some basis” or an “articulated basis” for the opinion. As mentioned, the evidence will be admitted where the witness is in a “better position” than the trier of fact, that he/she has some advantage in explaining or furthering the trier of fact’s understanding of the photograph or video evidence.

[17] Detective Constable Matthew Girgenti (“Girgenti”) is an officer involved in this investigation and had knowledge of the accused prior to the robbery in question, commencing in January 2014. Girgenti testified that he had previous familiarity with the accused spanning about five years.

[18] In March 2018, while Girgenti was assigned to the BEAR unit of the Hamilton Police Service (“HPS”), he was aware of the accused being a person of interest in a commercial robbery investigation undertaken by his unit. At this time, a photo associated with the accused was reviewed. From 2014 to December 2017 the officer looked at NICHE or mugshot photos of the accused approximately eight times.

[19] Briefly, on January 15, 2019, shortly after the robbery, video surveillance was obtained from an Esso Gas Station in Hamilton. The location and time of the video coincided with the data from the tracker the perpetrators had unknowingly been given. In the video, a bearded male is observed pumping gas into a dark grey Dodge Charger, consistent with the vehicle ultimately located by the police later that night on the QEW, in proximity to the tracker.

[20] Girgenti reviewed the actual video footage and stills (which lost a slight degree of resolution when extracted and printed from the video). Moving forward from that date, the officer had occasions to view photos of the accused circulated to the police. Given the purpose of so doing – identifying suspects – an added level of scrutiny and focus would logically attach. During this four-year period, the officer perceived the accused’s appearance via photo to remain very similar. Specifically, he noted the following: He had a “very distinct size and stature”; He always had a similar hair style, long, kept up in a bun or a ponytail, with occasions where it was “down longer”; The “undergrowth” of his hair was always shaved; He always had distinct facial hair, a chinstrap type design in his beard, with bulk of his beard under his chin longer than the side portion and his hair and beard remaining pretty consistent.

[21] Girgenti testified that the accused had aged “pretty well”, insofar as his appearance had not changed much. In addition, he was larger in stature with a muscular build. He often wore designer name brand clothes such as Nike, Guess, and Puma brands with a visible emblem or logo broadly displayed on the clothing, and he sometimes wore a hat.

[22] Six days before the robbery and the accused’s alleged involvement, this witness had direct, albeit brief, physical contact with the accused while he was in the custody of other police officers. On January 9, 2019, the officer was working in the BEAR unit and went down to custody on an unrelated matter. He observed the accused being escorted out by one of the custody officers. The meeting was coincidental and they came within two or three feet of each other. He testified that he recognized the accused “as soon as he saw him”. Girgenti actually made a note of this random encounter with the accused in his notebook.

[23] In deciding threshold admissibility of the proffered opinion, the court should assess whether the witness is sufficiently familiar with the accused. This does not require the witness to be able to point to some unique identifiable feature or idiosyncrasy of the person. Such issues are better considered in determining the ultimate reliability of the recognition evidence: Berhe, at para. 18-19, 22, R. v. M.B., 2017 ONCA 653, at para. 37. The question of “helpfulness” of the evidence does not invoke a high standard. The fact that a trier of fact may be able to identify the accused as the subject in the photograph or video unaided does not lessen the value of the witness’s advantageous position over the trier of fact to identify the accused: R. v. Anderson, 2005 BCSC 1346, at paras. 22-23.

[24] While it is a matter of weight, I accept that Girgenti was able to opine and recognize the accused in the actual surveillance video based on size and stature, distinct haircut, facial hair including the shaved portion, his overall face and wearing of a Nike hat and what appears to be designer clothing. This is not conclusive but it is one evidentiary piece of the puzzle.

Analysis:

[25] Again, in respect of the offences charged and as it pertains to this accused, this is a primarily circumstantial case.

[26] Lauren Ellison from Rogers Corporation provided details about the five accounts related to the cell phones in question. Various police officers including Ryan Komadski (“Komadski”) testified about the GPS tracking and their involvement in following the tracker to various locations. Komadski also testified about the search at the side of the QEW highway, just west of 50 Road as well as the area adjacent to the highway. Upon his arrival at the scene, he noticed a Dodge Charger with license plate CFA8 026 Toronto bound, on the side of the road, with the front passenger door open. He located a water bottle and white phone charger at the scene. Various photographs were tendered into evidence. About 100 metres away over the fence line, he seized items such as pills and a black bag with a firearm.

[27] Other police officers, for example, James Chrichton (“Chrichton”) also testified regarding his or their efforts in following the tracker and eventually ending up at the scene where the Dodge Charger was left. Chrichton testified that specifically that he found the pills and firearm in a garbage bag approximately 300 metres from where the vehicle was left and the firearm was described as a tactical rifle, .22 calibre rounds. He cleared the firearm and removed the magazine. There was no ammunition in the chamber.

[28] Detective Scott Hamilton (“Hamilton”) testified that on February 7, 2019 he went to arrest the accused at 245 Kenora Avenue, Unit 11 in Hamilton. This was Kalanyos’ last known address. Hamilton had a warrant to arrest Kalanyos, but not a Feeney warrant. At 12:22 p.m., he called the phone number 289-659-3706 and the voicemail was not initialized. He knocked on the door of the residence and no one answered. At 1:05 p.m., he sent a text message to the phone number ending in 3706 and the message came back, “What’s up?” He replied to the text message indicating that the individual ought to surrender and a reply came to the effect asking about the warrant for arrest “I’m going to call my lawyer, you got the wrong person.” Hamilton replied, “Who’s the lawyer?” and the response was “J. Goldlist.” At 1:52 p.m., a text came back indicating it was the wrong person.

[29] At 1:55 p.m., Hamilton contacted Ms. Goldlist advising about the warrant and at 1:56, the number 3706 called this officer asked about the outstanding charges. Hamilton advised the caller of the arrest warrants and the caller said he was not at the residence. At 2:36 p.m., the individual called him back indicated he wanted to come out. Less than a minute later, the accused exited the residence with his hands up. An unknown person closed the door behind him. Police did not enter the residence.

[30] Hamilton testified that when the accused spoke to him outside, he recognized his voice as the same voice that spoke to him on the phone ending with 3706. There was no phone on the accused during a search incident to arrest. The accused was known to this officer but he had no prior dealings with the accused in person. This evidence was not seriously challenged and I accept the officer’s testimony.

[31] As mentioned, I admitted Girgenti’s evidence as to his recognition of the accused at the gas station. Girgenti opined that the accused has a unique look, muscular not overly fat, and carries himself in a certain way. He has a muscular chest and upper body area, fairly large head with a more muscular upper half than lower half. His hair is dark black with sides shaved and sometimes he wears it in a ponytail. Similar sideburns were noted in the video. He was wearing clothing at the gas station which is similar to his known clothing.

[32] I accept the evidence of the viewing of the accused by this officer. Gigenti’s evidence was presented in a fair manner. While he had limited dealings with the accused, he was familiar with him from his employment in the BEAR unit and other units within the HPS. The officer was not prone to exaggeration and overstatement. He clearly delineated his rationale as to identification of the accused. Most significant is the fact he took a note of his observations of the accused mere days before the robbery in question.

[33] Again, in addressing the cogency and reliability of the evidence as it pertains to identity, I also reviewed the gas station video with the other evidence. The individual in question appears to be constantly looking around. This gas station video depicted the Dodge Charger pulling in to obtain gas shortly after the robbery in question.

[34] I am satisfied that based on the Facebook photos and related exhibits, it establishes that Janai Douse (“Douse”) has some association or relationship with the accused. The video clearly shows Douse exiting the Dodge Charger front passenger door, going into the store, purchasing gas and getting back into the vehicle on the passenger side. I have no doubt that this was indeed the accused’s girlfriend or partner at the relevant time.

[35] Upon my review of the video and the totality of the evidence, I find that the accused was the person in the video driving the Charger into the gas station, pumping gas on the day in question, shortly after the robbery.

[36] Girgenti also testified about following the GPS tracker and ending up in the area of Eastgate Drive where both vehicles were present, that is the Nissan Altima that was used to escape from the pharmacy robbery as well as the Dodge Charger that was later found at the highway.

[37] Girgenti arrived at that location at 9:30 p.m. and saw two individuals leaving the Altima and others getting into the Dodge Charger before leaving. He did not stop there because he was concerned about his own safety at the time. Specifically, he observed one man leaving the Altima and one entering the passenger side of the Charger. The video montage admitted as an exhibit depicted other individuals leaving, that is two persons leaving the area, and two getting into the Dodge Charger, including the driver of the Nissan Altima. No doubt a highly stressful situation, he focused his attention on two men walking away. When they started to run, he had lost them.

[38] Detective Constable Grimo, a Forensic Identification officer, testified in this case. The iPhone and rifle were sent to him for examination. There were four cartridges in the firearm, a .22 calibre in the clip, and the stock had been removed from the firearm. The firearm was operational. The black jacket located nearby in proximity to the black bag was also reviewed.

[39] A Nestea bottle was located in the Dodge Charger driver’s side door pocket. It was examined and the accused’s fingerprint was found on the Nestea bottle, as conceded by the defence. This is consistent with the positioning of the accused when he entered the vehicle at the gas station. Other fingerprints were located belonging to the formerly indicted co-accused, Petr Krajnak. That was on the water bottle which was found on the side of the highway next to the Dodge Charger. No other DNA or fingerprint evidence was tendered.

[40] Jovan Krasulja testified as a Crime Analyst for the HPS. He provided a PowerPoint presentation with respect to the cell phone towers in question and the various phones that were demarcated in various colours, specifically the yellow and blue phones and their tracking with the GPS tracker that was found in the pill boxes that were placed by the pharmacy staff. The GPS tracker followed a similar route to the cell phones as depicted in exhibits 18 and 19. The yellow phone was linked to the phone number 9635 while the blue phone was linked to 3706. I find that 3706 was utilized by the accused at all relevant times. Further, the 3706 phone relates to “Lorenzo”, and has in fact been established to be Kalanyos. This finding is supported by the evidence at trial including Facebook information, the series of events contemporaneous with Hamilton at 245 Kenora Avenue and other records.

[41] I accept the Krasulja’s evidence without question as to its accuracy, albeit bearing in mind that cellular towers provide a range and not a specific location. It is true that cell towers do not indicate who may be using the phone, however, the circumstantial evidence in this case is considerable. The concomitant travels of the Dodge Charger was also consistent with the GPS tracker trail that followed a route that was entered as an exhibit.

[42] Matthew Robinson, a Detective Constable of HPS testified. He is the officer in charge of the case and he collected video surveillance entered as exhibit 20 with a video log. There were five locations that were shown in this area including Eastgate Drive, two different locations, the gas station, and a Shopper’s Drug Mart. At the gas station, I mentioned before that a female from the passenger side of the Dodge Charger gets out and I find that that is Douse based on Exhibit 21, Niche photos, and Facebook pages that were obtained. There was also evidence regarding the rental of the Dodge Charger from Enterprise and the extraction reports, as well as consolidated cell phone evidence that was provided at trial.

[43] The witness, Arasn Smko (“Smko”) testified. On the first day of his testimony, this individual showed up under the influence of narcotics or drugs and was required to return on the next date for his evidence to be provided in a sober and sane manner. For the most part, the evidence provided by this witness was comprised of falsehoods and lies. He has no credibility whatsoever and in the face of documents shown to him, (e.g. text messages), this witness misled the court.

[44] In this case, there’s no dispute that the 2161 phone belongs Smko. I find that the phone number and pertinent text messages sent and received by Smko were from the accused from both the previous phone number and 3706. The number related to Kalanyos had been changed to the 3706 number, as evidence by the text messages sent to and received from various parties. Specifically, this includes the text messages before and after the robbery.

[45] I have no doubt that Smko rented the Dodge Charger not because he needed “a family car” as he testified, but rather, because of the directions provided by the accused in text messages that were sent to Smko in advance of the robbery. Smko advised that no one was in the car other than himself and his father. He tailored his evidence to distance himself from any involvement in this case. He admitted he knew the accused from a few years ago and saw him four or five times but clearly, he was minimizing his evidence.

[46] Smko’s evidence that he would leave the vehicle on the street and when returning in the evening not even notice that it was stolen until much later on that evening is incredible. This conforms to text messages received by him, indeed after the robbery, after the vehicle was abandoned on the QEW, at which point he had received messages communication from the accused to report the vehicle stolen. Contemporaneously, a flurry of messages was then exchanged between the two individuals.

[47] Again, Smko’s rationale for leaving the car on the street is rejected. Leaving the key in the glovebox for the vehicle to be taken is also nonsense and highly suspect. His lack of explanation as to why he would arrive home and wait hours before reporting the vehicle stolen is also unbelievable. This witness did not even acknowledge ever talking to the accused despite text messages being provided to him.

[48] I find that the phone records relate to the phone used by the accused to contact Smko, not only to obtain that particular car for its speed and size but also to report it to police once it was abandoned on the side of the highway after 11:30 p.m. on the day in question. In fact, Smko even denied calling back the number several times when speaking to the police on the evening in question. Smko was a willing participant in this sham and false reporting to the police. Smko is an unmitigated liar with a vague recall. He was entirely evasive during his testimony.

[49] As mentioned, this is a circumstantial case.

[50] Three men entered the pharmacy with firearms. A very serious situation. They escaped in a vehicle that was waiting outside. Moments earlier the Dodge Charger driven by the accused went past the pharmacy. The GPS tracker was with the drugs in the bag stolen by the suspects and it was soon transferred from the Nissan Altima to the Dodge Charger on Eastgate Drive. The Altima was abandoned and several perpetrators left the scene. The GPS tracker followed the same lengthy trail as the cell phone pings through Hamilton, east to Welland and then back towards Hamilton on the QEW.

[51] I am satisfied beyond a reasonable doubt that the accused was the driver of the Dodge Charger with his partner in the passenger seat, and the indicted co-accused in the back with another unidentified male. The pharmaceutical drugs were in the vehicle, tracked and some were found at the scene of where the vehicle was abandoned. The accused ordered Smko to report the car stolen shortly after abandoning it on the QEW after having fled the area.

[52] I also accept all of the evidence related to the various phones and their connection to the accused and other parties, known and unknown. I accept the evidence related to the phones, their designations and links to the various parties. Suffice it to state that I agree entirely with Mr. Milko’s submissions on point.

[53] An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the trier of fact is engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the trier of fact is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the judge can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead to the conclusion that the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: Villaroman, at paras. 28, 35-42.

[54] In determining whether the Crown has met that burden in a circumstantial evidence case, a judge may apply logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman, at para. 36:

… a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[55] The Dodge Charger was also linked to the GPS tracker and followed predominantly the same path for hours. I recognize the limitations and pitfalls of cell phone technology, GPS tracking and tower signals and identification of the actual user of the phone. Given the evidence in this case, there is no doubt whatsoever, that the tracker in the bag of narcotics and was removed from the Nissan Altima and placed in the Dodge Charger, driven by the accused. The timing and use of the 3706 (blue) cell phone by the accused in communication with various parties and accomplices during the relevant timeframe is part of the totality of the evidence that establishes his active participation and culpability.

[56] The defence urges an inference, including that if I should find that the accused was the driver of the Charger, that he was merely avoiding or evading the police due to an outstanding warrant. The manner in which the events unfolded and his manner of driving does not give rise to such an inference by any degree of logic or common sense. For example, the accused drove in a circuitous manner in Hamilton, stopping on route, and eventually left Hamilton to drive to Welland, only to turn back to Hamilton and abandon the car on the highway. Ever mindful of the onus, I reject this inference.

[57] Here, there are no gaps in the evidence may result in inferences other than the accused’s active participation as a party to the robbery. I make this finding on the only reasonable inference, given the evidence, assessed logically, and in light of human experience and common sense. I would go as far as to conclude that the accused was the ringleader or at least planned the robbery as a party.

[58] The drugs located near the car driven by the accused. The bag was in the vehicle driven by him having been brought to the car on Eastgate.

[59] In sum, I draw the reasonable inference that the accused was a party to the offence, planned the robbery or assisted in its planning and execution, albeit was not directly involved in the violent acts inside the pharmacy. The pharmaceutical drugs were in the bag with the tracker in the vehicle driven and controlled by the accused. Possession and knowledge are established.

[60] The mens rea of the firearm charges under s. 95(1) is satisfied “where the offender knew that he or she was in possession of a loaded firearm”: R. v. Williams (2009), ONCA 342, 2009 ONCA 342, 244 C.C.C. (3d) 138 at paras. 12, 18, 23; R. v. Lee, 2005 ABQB 757, [2005] A.J. No. 1359 (Q.B.) at paras. 76-85; R. v. Moffatt, 2005 ONCJ 126, [2005] O.J. No. 1576 at para. 12.

[61] Regarding these counts, it is clear that Kalanyos did not use the firearm at the pharmacy. The accused is charged with possession of a prohibited firearm.

[62] In R. v. Anderson-Wilson, 2010 ONSC 489, the trial judge provides a detailed overview of the legal principles applicable to constructive possession in circumstantial evidence cases. I quote from paras. 74-77:

Possession cases are fact-driven inquiries. Where proof is dependant upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant: (1) the physical proximity of the firearm to the accused,(2) the degree of visibility of the firearm: R. v. Marryshow, [2003] O.J. No. 1332 (S.C.J.) at paras. 36-39, (aff’d [2008] O.J. No. 4790 (C.A.)); R. v. Green; R. v. Rawlins (1993), 5 M.V.R. (3d) 280 (Ont.C.A.) at 281 – a sawed-off rifle can be easily concealed because of its reduced length: R. v. Ferguson (1985), 1985 CanLII 3534, 20 C.C.C. (3d) 256 (Ont. C.A.) at 262, (3) the degree of communal use of a vehicle containing the firearm: R. v. Freeman, [2006] O.J. No. 1021 (C.A.) at para. 6, (4) the size, nature and number of weapons in a particular space: R. v. Balasuntharam, [1999] O.J. No. 4861 (C.A.) at para. 2-4, R. Gagliardi, 2005 CarswellOnt 1543 (Ont.S.C.J. 2005) at para. 43 (aff’d [2006] O.J. No. 72 (C.A.)) (5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control: R. v. Coates (2003), 2003 CanLII 36956 (ON CA), 176 C.C.C. (3d) 215 (Ont.C.A.) at para. 11; R. v. Schero, [1969] O.J. No. 413 (C.A.) at para. 2.

Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects: R. v. Amado, 1996 CanLII 2961 (BC SC), [1996] B.C.J. No. 1943 (S.C.) at para. 33. In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of the proximity of the accused and the item: R. v. Green; R. v. Rawlins, supra at 281; R. v. Bauer, 2003 BCCA 138, [2003] B.C.J. No. 505 (C.A.) at para. 18; R. v. Anderson, supra at para. 26; R. v. Iturriaga, 1993 CanLII 2517, [1993] B.C.J. No. 2901 (C.A.) at para. 9.

A vehicle driver who knows a legally prohibited item is in a vehicle is not in the same position as a passenger who may merely acquiesce to another’s, i.e. the driver’s possession: R. v. T.(S.) (2001), 2001 CanLII 24185, 140 O.A.C. 122 (C.A.) at 123-4; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont. C.A.) at 555, 557-8. A driver, operating the vehicle with the owner’s consent, determines what is permitted to enter and stay in the vehicle and can “control access to the vehicle and exclude others from the vehicle”: R. v. Belnavis and Lawrence (1996), 1996 CanLII 4007, 107 C.C.C. (3d) 195 (Ont. C.A.) at 209, aff’d (1997), 1997 CanLII 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)).

In some firearms prosecutions, the established circumstances may give rise only “to a high degree of suspicion” (R. v. Freeman, supra at para. 7; R. v. Schero, supra at para. 3) while falling short of satisfaction that the only reasonable inference to be drawn from the proven facts is guilt: R. v. Green; R. v. Rawlins, supra, at 281. For example, in R. v. Rush, [2001] O.J. No. 1645 (C.A.) at para. 1, Osborne A.C.J.O. stated:

In our view there were competing inferences available to the trial judge on the issue whether the appellant was in possession of the firearms and ammunition located in the car in which he was found as a passenger. Accordingly it was not open to the trial judge to find that the only reasonable inference to be drawn from the facts or [to] be found then was that the appellant was [a] possessor of the firearms and ammunition in question. (See R. v. Cooper).

[63] In Anderson-Wilson, three men were arrested in a stationary vehicle where a shotgun was discovered. The accused was in the rear seat at the time and did not testify nor provide any evidence at trial. At issue was “whether the prosecution proved the accused’s knowing possession of the shotgun, in the sense of knowledge of the firearm’s presence and its loaded character and a measure of control over the weapon either directly or as a party to possession by another occupant of the vehicle”. Despite the fact that the weapon was visible to the driver of the car, the court found that the evidence of the shotgun’s location did not compel an inference that the accused physically possessed the firearm or must have been aware of its presence: see para. 85.

[64] Here, I am convinced that the accused likely had some awareness of the firearm used in the commission of the substantive offence, which was later located by police near the Dodge Charger.

[65] However, there is a distinction to be made between a finding of culpability for the planning, participation and execution of an armed robbery, with the essential elements of the firearms offences.

[66] I agree with Mr. Pearson. I am not convinced that the accused had the requisite knowledge or control of the firearm at the material times. Despite his involvement as a party to the offence in the commission of the pharmacy robbery, in this case, the evidence of the firearm proximate to the Dodge Charger does not compel an inference that the accused physically possessed the firearm or must have been aware of its presence. I am not persuaded that constructive possession in relation to the firearm has been established.

Conclusion:

[67] For all of the aforementioned reasons, I am left with a reasonable doubt as to the essential elements associated to the possession of a firearm and related prohibition orders. Therefore, Kalanyos is adjudged to be not guilty of counts 3, 4, 5, and 6.

[68] In applying the requisite legal analysis, the Crown has presented an overwhelming circumstantial case to establish the guilt of the accused in relation to the pharmacy robbery. Being satisfied beyond a reasonable doubt, I find that Kalanyos is guilty of count 1- robbery, count 2- possession of narcotics of a value exceeding five thousand dollars, as well as count 7- breach of probation. Convictions shall be registered on the indictment.

A.J. Goodman J.

Date: June 21, 2021

Court File No.: CR/20-167 Date: 2021/06/21

Ontario Superior Court of Justice

Between: Her Majesty the Queen, Crown

• and - Erik Kalanyos, Accused

Reasons for Judgment A. J. Goodman, J.

Date: June 21, 2021