COURT FILE NO.: 1988/19

DATE: 20210806

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BAN BOTH

S. Malik, for the Crown

G. Pannu, for the Defendant

HEARD: July 26-August 3, 2021

REASONS FOR JUDGMENT

MILLER J.

[1] Ban Both is charged with, on May 10, 2018, Count # 1 Robbery of Sadie Smith with a Firearm and Count # 2 Robbery of Pretha Garnett; and, on July 3, 2018 Count # 3 Possession of a Restricted Firearm; Count # 4 Possession of Prohibited Ammunition and Count # 5 Breach of Recognizance by Possessing a Weapon.

[2] The allegations are that Ban Both was party to a robbery with a firearm of a black BMW X5 SUV being driven by Sadie Smith on May 10, 2018 in Brampton, and to a robbery of a grey Hyundai Santa Fe being driven by Pretha Garnett on May 10, 2018 in Brampton. It is also alleged that Ban Both possessed a Smith and Wesson handgun and some prohibited ammunition recovered by police during a search of Ban Both’s residence in Kitchener on July 3, 2018. It is alleged that at that time Ban Both was not licenced to possess any handgun or prohibited ammunition and was bound by a recognizance not to possess any weapon as defined by the Criminal Code.

[3] At the conclusion of the Crown’s case, Ban Both conceded that the Crown had proven Counts # 3 and # 5 – Possession of a Restricted Weapon without a licence, and Breach of Recognizance. Ban Both is found guilty on Counts # 3 and # 5.

[4] On Count # 4 it was agreed that Ban Both was in possession of the subject ammunition on July 3, 2018 as the ammunition was in the handgun which he admits to possessing. It was admitted that he had no licence to possess prohibited ammunition. The issue was whether the Crown had proven beyond a reasonable doubt that the ammunition was prohibited. In final submissions the Crown conceded that it had not been proven that the ammunition was prohibited ammunition. Mr. Both is acquitted on Count # 4.

[5] Mr. Both applied for a directed verdict on Count # 2 – Robbery of Pretha Garnett - on the basis that no violence was used in the theft of Pretha Garnett’s vehicle. It was Mr. Both’s position that if I found that he participated in that incident, the only offence for which he could be found guilty would be the included offence of theft. For reasons set out below, the application for directed verdict on Count # 2 is dismissed.

[6] On Count # 1 it was an agreed fact that Irshad Sabriye was the person who used a firearm in the theft of Sadie Smith’s vehicle. The issue is whether the Crown has proven beyond a reasonable doubt that Ban Both was a party to the offence, and, if so, liable for Mr. Sabriye’s use of a firearm in the commission of that offence.

[7] On Count # 2 it was an agreed fact that Irshad Sabriye was driving Sadie Smith’s vehicle which was used in the commission of the theft of Pretha Garnett’s vehicle. The issue is whether the Crown has proven beyond a reasonable doubt that it was Ban Both who participated in that robbery by jumping into and stealing Pretha Garnett’s vehicle.

The Evidence

[8] Evidence was introduced by way of two Agreed Statements of Facts; affidavits from Angie McKlusky of the Canadian Firearms Registry; and a number of documents and photographs admitted on consent. Testimony was given by Sadie Smith; Pretha Garnett; Constable Moore of Peel Regional Police Service; Detective Genter of Waterloo Regional Police Service; Detective Herwatz of Waterloo Regional Police Service; Detective Lumi of Peel Regional Police Service and Detective Vanderwal of Peel Regional Police Service.

[9] It was admitted that on July 3, 2018 Mr. Both was bound by a recognizance not to possess any weapon as defined by the Criminal Code and that he was not licenced to possess a handgun or prohibited ammunition.

[10] On the basis of the admitted evidence I find that the Arminius handgun was a restricted firearm and that it was used in the commission of the robbery of Sadie Smith’s vehicle.

Testimony of Sadie Smith

[11] Sadie Smith is a personal support worker. On May 10, 2018 at 9:10 a.m. she was parked on Casper Crescent in her brother’s Black BMW X5 SUV speaking on the telephone with her sister. She noted a dark blue sedan approach behind her vehicle and that it was moving back and forth as if attempting to park. She heard a bang and realized the blue vehicle had struck the back of her BMW. She got out and walked to the back of her vehicle. She saw two men get out of the blue car.

[12] Ms. Smith described both men as wearing hoodies. The man who came from the passenger side of the blue vehicle was wearing a light blue hoodie with white. The man who came from the driver’s side of the blue vehicle was wearing a light green hoodie. He was to her right and she spoke to him, saying repeatedly, “you hit my car”. The man grabbed hold of the left side of the uniform top Ms. Smith was wearing, then reached under his shirt at the front and pulled out a black handgun which he then stuck against her ribs.

[13] The other man then jumped into the driver’s seat of Ms. Smith’s vehicle and drove off on Casper Crescent. The man wearing the green hoodie let go of Ms. Smith and jumped back into the blue sedan, which then pulled a u-turn and turned onto Hartford Trail. Ms. Smith testified that she turned and then saw her vehicle speed past the intersection of Casper and Hartford Trail. She testified that both vehicles were headed in the direction of Kennedy Road.

[14] Ms. Smith next saw her vehicle at a police station with significant damage to it. Ms. Smith was shown some photographs of a green North Face jacket with a hood. She identified the jacket as the green hoodie being worn by the man who grabbed her and stuck a gun in her ribs.

[15] On June 2, 2018 Ms. Smith attended a police station where she participated in a photo line-up. She was shown three sets of twelve photographs, and identified the person in photograph 12 of the third set as the man in the green hoodie, although she remembered his skin tone being darker than in the photograph.

[16] It is an agreed fact that Irshad Sabriye was the individual recognized by Sadie Smith in Photograph 12 of Photo Line Up #3 as the “green hoodie”. It is admitted for the purposes of this trial that Mr. Sabriye was the man in the “green hoodie”, as described by Sadie Smith, who came from and went back into the blue sedan during the Sadie Smith robbery.

[17] Ms. Smith testified that the man in the green hoodie was the same height as the man in the blue hoodie, whose height she estimated at 5’6” or maybe 5’7”. She agreed that at the preliminary hearing December 3, 2019 she had testified that the man in the green hoodie was 5’4”, a little bit taller than her, at 5’3”. At trial Ms. Smith testified that her own height was 5’3.5”.

[18] It is an agreed fact that Irshad Sabriye’s height at the time of arrest was 173 cm. 173 cm is 68.11 inches or just over 5’8”.

Testimony of Pretha Garnett

[19] Pretha Garnett is a case worker who was on her way to a meeting for work on May 10, 2018. She was driving a grey Hyundai Santa Fe SUV and was stopped at a stop light on Winston Churchill Boulevard approaching the onramp for the 401 highway. A black SUV bumped her from behind. She testified that this occurred between 9-10:00 a.m.

[20] Ms. Garnett got out to check to see if there was damage to the rear of her vehicle. As she did so, a man got out of the front passenger seat of the black SUV and came to the same area between the two vehicles. He apologized for hitting her and told her to take down the licence plate number. The driver of the motor vehicle did not get out, so Ms. Garnett went to the driver’s side of the black SUV.

[21] The driver’s window was down and Ms. Garnett could see the driver and again the passenger. The passenger had gone back to the passenger side of the black SUV and was speaking to the driver, telling him that he had hit her and he had to give her his insurance. She saw only these two men in relation to the black SUV. The driver appeared to be looking for insurance papers when Ms. Garnett saw the passenger sprint to her vehicle.

[22] Ms. Garnett testified that the man got into her vehicle and closed the door. She ran after her vehicle and grabbed hold of the door, but the vehicle drove off and she fell to the ground. She saw both vehicles speed off one right after the other. She believed they headed toward the 401. She sustained a bump and bruising to her forehead and bruising and scrapes to her knees and elbows from the fall.

[23] Ms. Garnett testified that her interaction with the passenger who ultimately stole her vehicle lasted about 10-15 seconds at the rear of her vehicle and that during that time she was glancing up and down. She also saw the passenger through the front side windows of the black SUV as she was waiting for about a minute for the driver to produce insurance. She testified that she saw the side of the driver’s face but that she saw the passenger full on.

[24] Ms. Garnett described the passenger as slim, with skin darker than hers. Ms. Garnett is black. Her skin colour is apparent in photographs of her injuries that were exhibited. She did not recall any facial hair but she did recall that the man wore a dark hoodie pulled tight around his face. She testified that she is 5’1”-5’2” and he was taller than her. She could not recall how much taller than her. She agreed that in her statement to police on May 10, 2018 she had said that he was “maybe a little taller than me, he wasn’t a tall guy”, but that she was not standing right next to him.

[25] Ms. Garnett described the driver as having a lighter skin colour than herself and looked mixed race. “He didn’t look pure black”. She thought he was also wearing a hoodie. She had a vague recollection of curly hair on the driver; she did not recall any facial hair and could not estimate his height.

[26] Ms. Garnett testified that both men were not more than 20. She recalled that the licence plate on the black SUV had a C and an F and the numbers 647 or 657.

[27] Ms. Garnett participated in a photo line-up on May 31, 2018. As with Ms. Smith there were three sets of 12 photographs. She said that the photo of Irshad Sabriye looked like the man who rear-ended her but was not sure. She marked NO to the question, “Do you recognize this person?”. She identified the photo of Ban Both as “looks like the young man who took my vehicle”. She pointed out his slim face, dark skin and age and said, “he did have on a hoodie which made it difficult to tell”.

Testimony of Wayne Moore

[28] Wayne Moore is a Peel Regional Police officer of 31 years. He was off duty on May 10, 2018 sometime before 9:45 a.m. He was southbound in his personal motor vehicle on Winston Churchill passing over Steeles in the area of the Mississauga/Brampton border.

[29] As he was coming up to the 407 overpass, he saw a woman either hit or who jumped from a grey Santa Fe. He saw her getting off the ground and running to the sidewalk flailing her hands. She appeared to be calling for help. Constable Moore saw the Santa Fe do a u-turn and then it went onto the 401 westbound. He followed the Santa Fe.

[30] Moore called 911. It took several attempts but eventually a 911 operator called him back and he then began narrating his observations to the operator. The 911 recording was used during Moore’s testimony to assist with timing, as the audio recording is time stamped. The 911 recording also captured – as past recollection recorded – Moore’s observations of the licence plates of vehicles as he observed them. The licence plate for the Santa Fe as observed by Moore was the plate of Ms. Garnett’s vehicle.

[31] Once on the 401 Moore observed the Santa Fe immediately skip over to the passing lane. He described very heavy traffic wherein at times traffic came to a complete stop. At one point, Moore was able to pull up in the middle lane to try to see the driver of the Santa Fe without making it obvious.

[32] Moore observed the driver to be male, black, wearing what he believed to be a blue hoodie with the peak of a white baseball cap showing. In cross-examination Moore described himself as “light-skinned black” and testified that the man he saw had darker skin than him.

[33] Moore could see that the driver was by himself in the vehicle and appeared to be rummaging on the passenger seat and in the glove box of the vehicle. Moore testified that they were stopped for 10-15 seconds before traffic started to move again. At that point he backed off and changed lanes, tucking in behind the Santa Fe.

[34] Moore’s attention, at this point was drawn to a blue vehicle as it pulled up beside him. He described it pulling up “kinda fast” and then stopped beside him. Moore observed two black men in that vehicle, both wearing baseball caps and hoodies. Moore observed damage to the passenger side rear bumper of that vehicle and conveyed to the 911 operator that it was a blue Mazda 3, with damage to the rear bumper and licence plate CEVC 700.

[35] At that point Moore was keeping distance between himself and the Santa Fe, hanging back almost a truck length for safety. He described that the blue Mazda swerved toward him to cut in. Moore blasted his horn, but the blue Mazda sharply accelerated and got behind the Santa Fe. Moore observed that at that point the passenger in that vehicle appeared to be talking on a cellphone. Moore described the manoeuvre as unusual as there was no need for it in the heavily congested traffic. In cross-examination he agreed that the blue vehicle might have been trying to get past the transport truck in front of it but it did not seem that way to him.

[36] Moore testified that this movement confirmed in his mind that those two vehicles were together. This impression was reinforced when the Santa Fe then cut in front of a transport truck and the blue Mazda tried to as well, but the transport driver wouldn’t let it. At that point the blue Mazda was boxed in by the transport, and Moore made no further observations of it.

[37] Moore moved into the far right lane. His attention at that point was drawn to black SUV as it a passed on the shoulder between the guardrail and the passing lane. He watched as it passed “a whole bunch of cars” and caught up with the Santa Fe. Moore described the movements of those two vehicles as “in tandem” thereafter, changing lanes and then exiting together at Guelph Line.

[38] Moore observed that the black SUV was a BMW X5 with licence plate CBRF 657. This was the vehicle stolen from Sadie Smith at 9:10 a.m. the same day.

[39] On Guelph Line the two vehicles pulled into a gas station, drove around the pumps, and then drove back south getting back onto the 401 westbound. The vehicles continued to mirror each other’s movements cutting in and out of traffic and then exiting at Brock. They proceeded northbound and then entered the parking lot of a church. Moore did not follow them in but waited at the roadway. After a brief pause both vehicles came out onto Brock and then proceeded eastbound on the 401.

[40] Both vehicles then went into the passing lane and then onto the shoulder passing other vehicles at high speed. Moore received information that there was an O.P.P. vehicle waiting at the Campbellville exit. He accelerated to catch up and followed the Santa Fe and BMW as they sharply left the highway at the Campbellville exit.

[41] Moore observed the O.P.P. vehicle activate its lights and siren and begin to pursue the vehicles southbound on the Campbellville Road. Moore tucked in behind. He observed that the BMW made a sharp turn onto Reid Road at high speed, then onto Twiss Road where it lost control and clipped a fence and struck a tree, coming to a stop. He saw the driver running from the vehicle.

[42] The Santa Fe behind was able to negotiate the turn and came to complete stop, then continued on Twiss. Moore followed the Santa Fe as far as Derry Road where he was told by 911 operator to disengage. He stopped following it at that time. He last saw the Santa Fe southbound. It is admitted, as confirmed by the 911 timestamp, that this was 10:31 a.m. Moore then returned to the crash scene.

[43] It is an agreed fact that the driver of the BMW was Irshad Sabriye. Photographs of the interior of that vehicle at the crash site show the Arminius handgun in the footwell of the front passenger seat.

Other Discreditable Conduct

[44] Evidence of other (separate from charges before the court) discreditable conduct is presumptively inadmissible.

[45] For evidence of other discreditable conduct to be admissible, the Crown must demonstrate on a balance of probabilities that the evidence is relevant and probative to an issue at trial, and that its probative value outweighs its prejudicial effect. R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 at paragraph 101.

[46] The Crown brought an application to admit other discreditable conduct. The application was not opposed by Mr. Both. The first Agreed Statement of Fact, Exhibit # 1 on the trial, included evidence of other discreditable conduct which Mr. Both agreed was admissible for a limited purpose.

[47] The other discreditable conduct was that Ban Both pleaded guilty before Justice Rabley at the Ontario Court of Justice in Kitchener, ON, January 11, 2019 to the indictable charge that on or about the 9th day of May in the year 2018 at the City of Cambridge in the West Region he did steal from Pratap Singh, a motor vehicle, to wit, blue Mazda 2014, with violence, contrary to section 344(1)(b) of the Criminal Code of Canada.

[48] The facts as admitted on the guilty plea were that:

• On May 9, 2018, at about 1:07 in the morning, Pratap Singh, a delivery driver with Domino Pizza, went to 175 Cedar Street South in Cambridge to deliver Pizza. Once there, he was assaulted by three suspects, one of whom was Mr. Both.
• Mr. Singh exited his vehicle to deliver the pizza to a particular unit at the complex. He said that during the assault, he was struck and that something was an object used but he could not describe it in any particular details. The suspects demanded that he give them whatever he had. He was struck in the face with the object during the robbery and was ultimately forced to give up the keys to his vehicle.
• The three suspects got into his vehicle and drove away. Inside the vehicle was the delivery order – about 100 dollars worth of pizza, and Mr. Singh’s wallet which contained various banking and credit cards.
• The vehicle was a 2014 Mazda 3.
• About 30 minutes after the robbery, Mr. Both attended the Petro Canada gas station located at 1187 Fischer-Hallman Road in Kitchener. He attempted to use Mr. Singh’s debit cards to try to purchase water and cigarettes by using the tap feature but the purchases were declined.
• This Petro Canada gas station is equipped with surveillance cameras. Mr. Both’s face was clearly seen on the video surveillance, which was later obtained by police investigators who, through investigation, were quickly able to determine that Mr. Both was the individual depicted on the video surveillance.
• On May 11, 2018, at 5:30 p.m., Mr. Singh’s vehicle was seen driving in Kitchener by a police officer. It was found abandoned at 6:00 p.m. in the area of Clover Place in Kitchener.
• Detective Abra interviewed Mr. Both after he was arrested on May 11, 2018 at 6:46 p.m. and Mr. Both acknowledged that it was him on the video surveillance attempting to use Mr. Singh’s credit card a half hour after the robbery.
• The other two males who engaged in the robbery have not been identified.

[49] The purpose for which it was agreed this evidence was admissible was to show Mr. Both’s association with the blue Mazda 3 stolen from Mr. Singh on May 9, 2018. It was not admissible to show any propensity on Mr. Both’s part in respect of carjacking.

[50] Additional evidence of Mr. Both’s interaction with the blue Mazda 3 came from the testimony of Detective Herwatz who observed in video footage what he identified as a blue Mazda 3 at the Petro Canada gas station in the timeframe Mr. Both was admittedly inside the gas station store using Mr. Singh’s documents. Detective Herwatz also testified that Mr. Both was distinguishable from other persons present at that time due to his light-coloured clothing, and appeared to exit from the rear driver’s side door of the blue vehicle before entering the store.

[51] Detective Genter, who participated in the search of the blue Mazda Singh vehicle on May 12, 2018, found a fingerprint later identified as belonging to Ban Both, on the rear driver side window of that vehicle.

[52] Detective Genter was involved in searching the blue Mazda and the grey Santa Fe. He also took photographs of the vehicles searched. There was rear left bumper damage to the blue Mazda and scrapes to the paint in the area of the rear licence plate and a missing piece below the front driver’s side headlight. The Santa Fe had the licence plate BVEJ 148.

Testimony of Mark Herwatz

[53] Detective Herwatz of Waterloo Regional Police was involved in the investigation of the Singh robbery. He confirmed that the vehicle stolen from Pratap Singh was 2014 Blue Mazda 3TR 4 door blue with licence number CCJE 263.

[54] Detective Herwatz was also involved in the search of this vehicle May 12, 2018 after it was recovered by police. He confirmed that the vehicle when searched was un-plated but that two licence plates number CEVC 700 were located in the trunk of the vehicle.

[55] It is an agreed fact that on May 11, 2018, an individual named Kyla Vendrig was contacted by Durham Regional Police investigating an incident involving her license plates. Ms. Vendrig went outside to check her car and discovered that her license plates, both front and back, had been stolen and so reported it to Waterloo Regional Police. The original license plates had been replaced with different plates. The license plates that were stolen were CEVC 700 and the plates left on her vehicle were CCJE 263. Ms. Vendrig did not know when and where the plates were stolen except that it was after May 1, 2018.

[56] Detective Herwatz viewed the video footage from the gas station where Mr. Both admitted he had attended and used Mr. Singh’s debit card. In addition to identifying Mr. Both as the man inside the gas station store, Detective Herwatz observed in video footage of the outside of the gas station store that about 20-30 minutes after the Singh robbery three vehicles, including a blue Mazda 3 came into the gas station parking lot in a convoy manner. After Mr. Both left the store, the three vehicles left the gas station parking lot in convoy fashion.

[57] Detective Herwatz admitted that the distance from the video to the three vehicles was significant and the video quality poor but he identified the three vehicles as a blue Mazda 3, a beige Mazda, and a black Honda SUV. He testified that he observed five people outside of those vehicles once they stopped at the gas station but could not say if there were more inside the vehicles.

Testimony of Jeff Vanderwal

[58] Detective Vanderwal of Peel Regional Police Service was called to the scene of the Sadie Smith robbery. He began searching for possible video surveillance at properties in the neighbourhood. He discovered such video recordings at 79 Hartford Trail and recovered it. The video recordings were entered into evidence.

[59] The camera at 79 Hartford Trail showed several camera angles. It shows a black BMW westbound on Hartford Trail followed immediately by a blue sedan at 8:13 a.m. on the camera clock. The video then shows, five minutes later at 8:18 a.m., the BMW eastbound on Hartford and then with one vehicle in between, the blue vehicle headed in the same direction. Both the BMW and the blue vehicle can be seen heading straight through the traffic light at Kennedy Road.

[60] Detective Vanderwal testified that when he first viewed the video footage, he noted that the timestamp on the camera was 55 minutes slow. He agreed that he had not made note of this at the time but had an independent recollection of this. He was vigorously cross-examined about this.

[61] If Detective Vanderwal’s evidence is accepted the video footage shows the two vehicles westbound on Hartford Trail at 9:08 a.m. and then eastbound at 9:13 a.m. This is consistent with Sadie Smith’s evidence that the theft of her vehicle occurred shortly after 9:10 a.m.

Evidence of Other Suspects

[62] Detective Genter also testified – with agreement of both Crown and defence counsel that hearsay evidence was admissible from him – that a fingerprint identified as belonging to Pierre Chery was located on the blue Mazda at the top of the door panel just below the window on front passenger door. There was also a right thumb print identified as belonging to a Zakira Alas at the top of the front passenger side door of the Santa Fe. DNA left on sunflower seed shells, a cigarette butt and clothing left in the Santa Fe all came back associated to male individuals other than Ban Both.

[63] Detective Genter explained that textured areas, such as the steering wheels, are not tested for fingerprints as the texture would interfere with ridge detail on any fingerprints found.

[64] Detective Lumi testified that the fingerprint and DNA evidence implicating people other than Mr. Both was not sufficient evidence, without something else, to lay charges against those individuals in connection with these incidents. There is no way to determine when the fingerprints or DNA were deposited.

Search of Mr. Both’s Residence July 3, 2018

[65] The second Agreed Statement of Facts Exhibit # 25 indicates that:

• There is no issue with the execution of the search warrant at 34 Guerin Avenue, Unit D in Kitchener, ON. Mr. Ban Both resided at the address of 34 Guerin Avenue, Unit D in Kitchener, ON on or about July 3, 2018.
• There is no issue with continuity of the Smith and Wesson hand revolver bearing serial number 26637 as well as the ammunition (2 bullets) found at 34 Guerin Avenue, Unit D in Kitchener, ON.
• The Smith and Wesson hand revolver as well as the ammunition found relate to the restricted weapon and ammunition in Counts 3-5 of the Indictment.
• All elements of the offences of counts 3 and 5 are conceded
• Sgt. Christopher Salmon’s (#2213) evidence is admitted as follows:
• The search warrant pertaining to 34 Guerin Avenue, Unit D in Kitchener, ON was executed by members of the Tactical Unit.
• There were three parties present at the residence at time including Ms. Hanna Chul Both, Mr. Benjamin Both, and Mr. Ban Both.
• Once the residence and its occupants were cleared, the house was handed over to investigators for the search.
• At 11:09 a.m., an officer entered the residence to take pictures of the residence before the search commenced.
• Shortly thereafter, around 11:20 a.m., Sgt. Salmon started his search of the residence.
• At 11:33 a.m., Sgt. Salmon started searching the basement. At 11:35 a.m., Sgt. Salmon located a passport that belonged to Mr. Ban Both, and that was located on the floor near a Play Station 4 along the back wall of the basement. A couple of minutes later, at 11:37 a.m., Sgt. Salmon located a small black revolver in the ductwork in the basement ceiling with two bullets in the chamber. It was a 32 calibre Smith and Wesson hand revolver. Sgt. Salmon also located in the same ductwork an iPhone. Further down the same ductwork in the ceiling, Sgt. Salmon also located some government paperwork that belonged to Mr. Ban Both and had his name on it. About 11:50 a.m., Sgt. Salmon turned all the property that he seized over to the exhibit’s officer.
• The government paperwork belonging to Mr. Ban Both was less than a meter from the 32 calibre Smith and Wesson hand revolver in the same ductwork.
• The Smith and Wesson hand revolver did not belong to Ms. Hanna Chul Both or to Mr. Benjamin Both and has only been associated with Mr. Ban Both.

Directed Verdict Application

[66] Mr. Both brings an application for directed verdict on Count # 2, the Robbery of Pretha Garnett. Counsel for Mr. Both submits that there is no evidence of the essential element of violence in the commission of this offence, and the most Mr. Both could be found guilty of is the included offence of theft.

[67] The Crown submits that there is evidence of violence in the commission of the theft and the application for directed verdict should be dismissed.

[68] Section 343 of the Criminal Code provides that:

Every one commits robbery who

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(c) assaults any person with intent to steal from him; or

(d) steals from any person while armed with an offensive weapon or imitation thereof.

[69] Counsel for Mr. Both relies on R. v. Hyatt 2015 ONSC 1026 wherein at paragraph 4, Thorburn J. (as she then was) referenced R. v. Lieberman 1970 393 (ON CA), [1970] 5 C.C.C. 300 (Ont. C.A.) Jessup J.A at pp. 308-309 in citing the premise that “an intention to steal must be the purpose of, and accompany, the violence before or at the time of a theft or otherwise in connection with it.” Further, at paragraph 5, referencing R. v. Daughma, [1989] O.J. No. 1765 (Ont. C.A.) Goodman J.A. at p. 2: “Where the theft is completed before the threat of violence, it cannot be said that the threat was used to prevent or overcome resistance to the stealing.” In Hyatt, Thorburn J. was satisfied that the assault occurred but not that the accused had the intent to steal.

[70] Counsel for Mr. Both submits this case is on all fours with R. v. Callihoo, 2006 ABPC 347, wherein the accused was found guilty of theft but not guilty of robbery. In that case the accused entered a gas station kiosk to steal cigarettes and cash. She was interrupted by the entry of the clerk who grabbed her from behind. She managed to wriggle away and enter a vehicle which then drove away. The trial judge found that the fall was not caused by any action of the accused.

[71] Counsel for Mr. Both submits that it was unforeseeable that Pretha Garnett would grab the doorhandle of her vehicle and therefore the mere driving of the vehicle away does not amount to violence. He further submits that the theft was complete once the person stealing the vehicle closed the driver’s door. He submits that the bumping of Ms. Garnett’s vehicle preceding the theft, although admittedly part of the modus operando, was so minimal that it cannot be considered as violence to property as contemplated under s. 343 (a).

[72] The Crown submits that the bumping of Ms. Garnett’s vehicle was hard enough that Ms. Garnett felt it and exited her vehicle and should be considered violence to property as part of the continuing offence. The Crown further submits that Ms. Garnett’s fall, as distinguishable from Callihoo, was caused by her vehicle being driven away as she held onto its door, and not from falling while chasing the individual or the vehicle, therefore violence was inflicted upon her in the course of the theft and to facilitate the theft.

[73] I find that the bumping of Ms. Garnett’s vehicle through to the driving away of the Garnett vehicle was one transaction. The bumping of the vehicle was a deliberate act of violence to Ms. Garnett’s property as part of a scheme to get her to get out of her vehicle to check for damage. The act of the person who then jumped into the Garnett vehicle was an accompanying theft and the violence done to Pretha Garnett by the continuing act of driving while she was holding the door of her vehicle is distinguishable from Callihoo wherein the clerk fell while chasing the vehicle. I find that despite the efforts of the robbers to distract Ms. Garnett, it was entirely foreseeable that she would try to stop them from driving off in her vehicle by grabbing onto the door of her own vehicle.

[74] I find that the theft was not complete until after the vehicle was driven away, the driving having thereby dislodged Ms. Garnett and causing her to fall.

[75] The application for directed verdict on Count # 2 is dismissed.

Identity as Person who stole Pretha Garnett’s Vehicle

[76] Counsel for Mr. Both submits there is reasonable doubt that Ban Both was correctly identified by Pretha Garnett as the person who jumped into and drove off with her vehicle and it cannot otherwise be proven that he was part of that joint enterprise.

[77] The Crown submits that Pretha Garnett’s photo line-up identification of Mr. Both is supported by other evidence, and in particular his association with the blue car observed by Wayne Moore while he was pursuing Ms. Garnett’s stolen vehicle.

[78] Both Crown and defence counsel agree with the characterization of eye-witness evidence as described in R. v. Ismail, 2021 ONSC 4426. Eye-witness identification must be approached by a trier of fact with extreme caution.

[79] Justice Phillips in Ismail summarized the law on eye-witness identification at paragraphs 6-8 of that decision as follows:

[6] Cases that turn on the issue of identification are notorious contributors to the disastrous phenomenon of wrongful conviction. The dangers of eyewitness identification evidence and the risk of miscarriages of justice are well known. The concern, generally, is one of reliability, as opposed to credibility of the eyewitness. There is a real risk of honest but mistaken identifications by well-meaning witnesses. The Court of Appeal for Ontario discussed this at some length in R. v. Jack, 2013 ONCA 80, at paras. 13-14.

[7] The trier of fact must critically examine all the circumstances of the identification evidence. The areas of concern are numerous. I can do no better that Hill J., who set out a non-exhaustive list of things to consider in R. v. Gonsalves, 2008 17559 (ON SC), [2008] OJ No. 2711, at para. 39:

Our experience with eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability. Judicially created checklists, based on long experience with the inherent dangers of eyewitness identification evidence, assist in assessment of the circumstances of a specific identification …. Was the suspect a complete stranger or known to the witness? Was the opportunity to see the suspect a fleeting glimpse or something more substantial? Was the setting in the darkness of night or in well-illuminated conditions? Was the sighting by the witness in circumstances of stress …? Did the witness commit the description to writing or report the description to the police in a timely way? Is the witness’ description general, generic or vague or is there a description of detail including distinctive features of the suspect and his or her clothing ….? Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between the witness’ initial sighting of the suspect and the rendering of the descriptive account to the police or the court? Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness’ description of the suspect failed to include mention of a distinctive feature of the accused? Is the eyewitness identification unconfirmed?

[8] Arguably, the most dangerous type of identifications are those involving a very limited opportunity to observe the suspect. As stated in R. v. Pelletier, 2012 ONCA 566, at para. 90:

First, countless authorities acknowledge the inherent frailties of eyewitness identification evidence, especially in cases that involve fleeting glimpses of unfamiliar persons in stressful circumstances.

[80] I approach Ms. Garnett’s identification of Ban Both as the person who stole her vehicle with these cautions in mind. I also note that unlike in Ismail, this is not a case of cross-racial identification.

[81] No issue was taken as to the way in which either photo line-up was conducted.

[82] It is an agreed fact that Ban Both’s height at the time of arrest was 185 cm. 185cm is 72.83 inches or just below 6’1”. Pretha Garnett’s description of the person’s height is inconsistent with Mr. Both’s height at the time of his arrest in July 2018, within a few weeks of the May 10, 2018 robberies.

[83] Ms. Garnett’s description of the individual, and in particular the thinness of his face, is otherwise consistent with Mr. Both.

[84] Counsel for Mr. Both submits that in addition to the inconsistency in the description of height, the words used by Ms. Garnett in identifying Mr. Both “looks like”, convey uncertainty on her part.

[85] I observed that Ms. Garnett was careful in her identification of Mr. Both in the photo line-up, the process of which was captured on videotape, but in the end, she was sure, and answered YES to the question did she recognize him. This is in contrast to her treatment of the photo of Mr. Sabriye, who she correctly – given the agreed facts that he was the driver of the BMW at the time of Ms. Garnett’s robbery – identified as the driver of the black SUV. She was unsure, and so answered NO to the question whether she recognized him.

[86] I accept that the certainty of an eye-witness is not determinative, and can be misleading, and so I consider the other evidence implicating Mr. Both in the Pretha Garnett robbery.

[87] I have also considered that Ms. Garnett did not recall the robber wearing a baseball cap whereas Wayne Moore saw the driver, some minutes later, wearing a baseball cap as well as a hoodie.

[88] Ms. Garnett was straightforward and careful in her testimony. I noted that she brushed off her own injuries as minor. She did not exaggerate any portion of her testimony and indicated she was unsure when she was unsure, and that she was sure when she was sure.

[89] Mr. Both’s association with the blue Mazda 3 is admitted. That and the fingerprint evidence definitively put Mr. Both in possession of the blue Mazda 3 as of May 9, 2018. That evidence alone does not put Mr. Both in association with the blue Mazda 3 when it was used on May 10, 2018.

[90] While counsel for Mr. Both challenged Constable Moore’s testimony about the association of the blue Mazda 3 with the Garnett robbery, it is undisputed that that vehicle was the Singh vehicle stolen by Mr. Both on May 9, 2018. The stolen licence plates allow for no other rational conclusion.

[91] Having considered the evidence as a whole, I am satisfied that the blue Mazda Singh vehicle was, if not directly involved in the Garnett robbery, was being driven by persons who were part of the group enterprise of the Garnett robbery.

[92] I have considered that there is evidence that a number of other people besides Mr. Both were also associated with the blue car. On May 9, 2018 at the Petro-Canada station there were at least four others; there were two people seen running from blue car when it was abandoned; and Mr. Sabriye and two others observed in relation to the blue car by Sadie Smith.

[93] It is further an agreed fact that the Hyundai Santa Fe belonging to Pretha Garnett was found by Waterloo Regional Police in the Waterloo Region on May 11, 2018 shortly after 9:31am. And that six to eight individuals were seen running from the car. I have considered the fingerprints and DNA evidence from the blue Mazda and the Santa Fe that did not belong to Mr. Both.

[94] Moore’s observations are consistent with the robbery of Ms. Garnett being a group effort and it is not surprising that others, besides Mr. Both, had possession of the blue Mazda vehicle after Mr. Both. If I accept Pretha Garnett’s identification of Mr. Both as the person who came from the BMW and drove away in her Santa Fe as correct, there had to be other people in the blue Mazda. There is no inconsistency there.

[95] I have considered whether there is some reasonable alternative to Mr. Both having been the person identified by Pretha Garnett and I conclude on the whole of the evidence that there is not. I am not left with any reasonable doubt that Pretha Garnett correctly identified Ban Both as the person who stole her vehicle on May 10, 2018 and I find that she was mistaken in her description of his height, given her focus on his face, the angle of her view of him and the stress of the situation, both at the time and immediately thereafter. I am satisfied beyond a reasonable doubt that Ban Both was that person and he will be found guilty of Robbery on Count # 2.

Party to the Robbery with Firearm Offence

[96] There is no issue that the theft of Sadie Smith’s BMW X5 motor vehicle was a robbery with a firearm. It is an agreed fact that an Arminius revolver was found in the Black BMW X5 with license plate CBRF 657 that crashed on Twiss Road, Campbellville, ON. It is admitted for the purposes of this trial that the Arminius Revolver was the firearm used in Count 1 of the Indictment (Sadie Smith Robbery).

[97] It is an agreed fact that Irshad Sabriye was the man in the green hoodie who held a gun to the ribs of Sadie Smith, and that he re-entered the blue sedan which had rear-ended Ms. Smith following that robbery therefore, sometime between Casper and WC Sarye gets out of blue sedan and in to BMW. It is an agreed fact that that Mr. Sabriye then drove the Black BMW X5 with license plate CBRF 657 belonging to Ms. Sadie Smith in the robbery of Ms. Pretha Garnett. It is an agreed fact that Irshad Sabriye is deceased as of November 26, 2019.

[98] There is no direct evidence that Ban Both was involved in or even at the Sadie Smith robbery. The only evidence is his association with the blue car used in the robbery.

[99] I am satisfied that the blue car captured in the Hartford Trail video footage was the blue car described by Sadie Smith. I accept Constable Vanderwal’s evidence about the time differential, despite his lack of notes, and I find that the video evidence is consistent with the observations of Ms. Smith. Although the blue car in the video cannot definitively be identified as a Mazda 3, I am satisfied that it is the Singh vehicle, given the observations of Wayne Moore and the association of that vehicle with the Garnett Santa Fe and by implication, Smith BMW as observed by Moore.

[100] I further consider, however, that in the photo line-up given to Ms. Smith was a photograph of Ban Both that she did not identify as either of the two men she saw outside of the blue car involved in the robbery of her vehicle. Further, the blue hoodie she described does not match the description of the hoodie worn by Mr. Both as described by Pretha Garnett and Wayne Moore. I conclude that if Mr. Both was involved with the Smith robbery he was not one of the two men outside the blue car, although he might have been the third individual inside the car.

[101] As noted above, there is evidence of a number of other people associated with the Singh vehicle at different times.

[102] I have considered the timing of the two robberies. Wayne Moore observed two people in the blue car, which, together with the single drivers of the Santa Fe and the BMW, would add another individual to the three involved in the Smith robbery. Timing would have been tight to add in Mr. Both to the group involved in the Garnett robbery if not involved in the Smith robbery, but there is evidence that in that time frame there was a change of drivers for the BMW, and so it is possible, if not likely, that Mr. Both was not the third person in the blue car at the Smith robbery.

[103] I am left with a reasonable doubt as to the involvement of Ban Both in the Smith robbery, and he will be found not guilty on Count # 1.

Verdicts

[104] Ban Both is found not guilty on Count # 1; Guilty on Count # 2; Guilty on Count # 3, Not Guilty on Count # 4 and Guilty on Count # 5.

MILLER J.

Released: August 6, 2021

COURT FILE NO.: 1988/19

DATE: 20210806

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BAN BOTH

REASONS FOR JUDGMENT

MILLER J.

Released: August 6, 2021