ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AMARPREET DOAD
Defendant
Shazin Karim, for the Crown
Craig Zeeh, for the Defendant Amarpreet Doad
HEARD: July 5,6,7,8,11,12,13,14 and 16, 2021
Justice G.D. Lemon
judgment
Introduction
1Mr. Doad is charged with ten offences arising out of a series of events that are alleged to have taken place over three days in December of 2018.
2First, he is charged that on December 21, 2018, he carried out a home invasion robbery using a firearm and while his face was masked.
3Second, he is charged that on December 24, 2018, he stole two motor vehicle license plates and carried out another robbery using a firearm while having his face masked. On the same day, he is alleged to have robbed a Pioneer Gas Bar while using a firearm with his face masked.
4Finally, he is charged that on December 25, 2018, he stole a vehicle, drove it, and failed to stop when pursued by police.
5The parties agreed that the case against Mr. Doad is entirely circumstantial; there is no direct evidence that, standing alone, convicts Mr. Doad of any of the charges. Given the circumstantial nature of this case, I can find Mr. Doad guilty only if I am satisfied that his guilt on each of the offences is the only reasonable or rational conclusion to be drawn from the whole of the evidence.
6The inferences that might be drawn from any piece of evidence must be considered in light of all of the evidence and the absence of evidence. The evidence must be assessed logically and in light of my own experience and common sense.
7If there are reasonable inferences to be drawn from the whole of the evidence other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
8A gap in the evidence may result in inferences other than guilt. But those inferences must also be reasonable, given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
9The Crown may need to negate reasonable possibilities, but does not need to negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. See: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000; R. v. Perrier, 2004 SCC 56, 188 CCC (3d) 1.
10After assessing all of the evidence, I find that Mr. Doad is guilty of some, but not all, of the offences.
Evidence
Agreed Statement of Facts
11The Crown and defence filed an Agreed Statement of Facts with respect to what the witnesses would have testified to if they had been called. I will take the relevant facts from that document for my determination.
Home Invasion – December 21, 2018
12The events of December 21, 2018 form the basis of counts one and two of the indictment. It is alleged that Mr. Doad robbed Balwinder Singh while using a firearm and that he committed that offence while having his face masked.
13Four witnesses could have provided evidence with respect to these counts. They each confirm that in the early morning hours of December 21, 2018, two males entered a home at 43 Hull Street in Mississauga. The two suspects demanded the keys to a BMW sedan parked in the driveway; the suspects also took three cell phones from the residence. The two then drove away in the stolen BMW.
14Both suspects were masked and at least one, if not both, had a handgun. None of the four resident witnesses could identify the intruders. The description of the men was unremarkable; they wore dark or black clothing, gloves, were of medium build but one was smaller. At least one witness thought that one of the men had a Punjabi accent or said a Punjabi word but otherwise the intruders spoke English.
15Mr. Singh confirmed that his black four door BMW 320ix bearing Ontario marker CDDK 429 was stolen.
16A video canvass of the area near 43 Hull Street was conducted. Surveillance video was seized from a residence approximately 100 meters east of 43 Hull Street. That video shows two males walking towards Hull Street at 4:18 a.m. One of them is wearing black pants with three stripes at the bottom of his right leg. Later, a dark vehicle is seen eastbound on Hull Street.
17One of the stolen cell phones was tracked to an Esso gas station at 829 Lakeshore Boulevard in Toronto. Police attended the gas station and observed a discarded mask in a garbage bin which they seized at 8:30 a.m.
18Police obtained surveillance video from the Esso gas station and observed a beige Honda CRV with Ontario license plates BEEC 277 with two occupants. The passenger of the CRV pumped gas into the vehicle and then dumped the mask into the garbage can near the entrance of the Esso gas station. Other evidence at trial confirmed that the passenger of the CRV at the gas station had black pants with three distinctive white stripes on the leg.
19The other occupant of the CRV, the driver, is identified as the registered owner’s son Mohd Farooqi. The passenger of the CRV is described as wearing black pants with the three distinctive white stripes of the Adidas symbol at the bottom of his right pant leg. The BMW was not observed at the gas station. The iPhone was not located at the gas station.
20So, to that point, nothing identifies Mr. Doad as one of the perpetrators of the home invasion. So far, the important pieces of the puzzle are as follows:
(a) Two men carried out the home invasion;
(b) A dark BMW was stolen.
(c) A man in the vicinity of the home invasion has Adidas pants on and is walking toward the house with another man.
(d) The man who drops off the mask has Adidas pants on.
(e) The video from the gas station shows that the same man has a black Toronto Blue Jays t-shirt on.
(f) The same man is at the same gas station to which the cell phone was tracked.
21While the Crown submits that the man in the video at the gas station is Mr. Doad, I am unable to make that connection. They are not dissimilar, but I cannot say that the recording is of Mr. Doad. See: R. v. Abdi, 2011 ONCA 446. I have the recent advantage of being able to compare Mr. Doad’s appearance on Zoom with the video at the Esso station. However, I have only seen Mr. Doad from the shoulders up. I have little information about his actual height and weight. On that evidence alone, I am not prepared to make the determination that Mr. Doad is on the video. As will be seen below, I need not use that evidence in any event.
Pioneer Gas Station Robbery – December 24, 2018
22Mr. Doad is charged in count four with robbing a Pioneer Gas Station with a firearm. Count five alleges that he did so while his face was masked.
23On December 24, 2018, at approximately 6:00 a.m., a masked male wearing a Rocawear jacket with the letters XCIX on the back, entered the Pioneer Gas station at 754 Bronte Road in the Town of Oakville. His face was covered with a balaclava.
24The police obtained the surveillance video from the gas station. At 5:31am, a black BMW with license plate CFWB 879 pulled into the gas station lot and parked beside the tire inflation machine. [This is a different plate than was on Mr. Singh’s vehicle when it was stolen.] Three males are observed in the vehicle.
25Just before this robbery, a male is observed exiting the back seat of the stolen BMW, putting air into the rear passenger tire, and then re-entering the vehicle as the male in the front seat is getting his jacket and mask on. At least 3 males were seen in the vehicle at the time of the robbery.
26At 5:44 am, the driver puts on the XCIX lettered jacket. At 6:01am, the driver drives the BMW up to the gas station kiosk.
27The clerk at the gas station could testify that an unknown male pulled up in a BMW and came inside wearing all black clothing. He pointed a gun at the clerk and told him to give him the money. The clerk opened the register and gave the male approximately $400 to $500 dollars. The gunman then demanded all of the cigarettes. The clerk provided him with 30-40 packs of cigarettes. The male then said, “I want some more fucking money”. The clerk said he did not have the keys to the safe and had no more money. The male then left.
28The clerk described the robber as sounding “like a white guy”, wearing all black with black gloves, shoes, pants, and a sweater with a zipper. He said the gun looked like a pistol with a little silver underneath and black on top. The clerk thought that the male was 25 to 30 because of his voice and that he was 5’8” and 85-90 kg. The vehicle left the gas station going south. There was nothing unique about the car, “just a regular BMW.”
29The police investigated the CFWB 879 plates through the Ministry of Transportation. The MTO’s report indicated that the plates had been reported stolen in Toronto on December 23, 2018.
30So, to that point, we still have no positive identification of Mr. Doad. But we have a distinctive XCIX jacket, and a black BMW with a stolen license plate. The group is made up of three men rather than two, and those in the video at the gas station are not wearing pants with three stripes.
Theft of License Plate – December 24, 2018
31Count seven alleges that Mr. Doad stole the license plate of Ashraf Hannoon.
32Later the same day, at approximately 8:48 a.m., a complainant called 911 regarding a male armed with a knife in front of the residence at 3841 Talias Crescent in Mississauga.
33The male was seen removing the rear license plate off a vehicle that belonged to Ashraf Hannoon. The complainant took pictures of the male and gave them to police. The photos in evidence show a masked man wearing a XCIX jacket. The jacket is open, and a dark Toronto Raptors shirt is visible beneath the coat.
34Cst. Lee was the first officer on scene. When Cst. Lee arrived, he did not see anyone enter the BMW; the occupant(s) were already inside. Upon arrival, he observed that the driver of a black BMW was wearing a balaclava. There was possibly a passenger in the rear of the BMW.
35The officer attempted a traffic stop but the BMW drove at the cruiser, swerved past it, and mounted the curb. The officer started to pursue the BMW but discontinued it shortly thereafter. The BMW was last observed driving erratically on the 407.
36Mr. Hannoon would have testified that he is the registered owner of a 2009 Chevrolet Malibu with license plates CATM 444. The back plate from that car was stolen the morning of December 24, 2018 while it was parked across from 3849 Talias Crescent.
37So, to that point, we have
(a) the same XCIX jacket as at the Pioneer robbery,
(b) an identifiable Toronto Raptors t-shirt,
(c) the same BMW motor vehicle or at least the same type of motor vehicle as in the last offences, and
(d) one male stealing license plates in the car.
Theft of License Plate at Petro Canada – December 24, 2018
38Count eight alleges that Mr. Doad stole a dealer plate from a Mazda dealership.
39On December 24, 2018, at approximately 9:15 a.m., an un-plated BMW was present at the Petro Canada gas station at 9070 Jane Street in the City of Vaughan. There, an occupant of that vehicle stole a dealer plate, 984 DPE, that belonged to the Maple Mazda vehicle dealership. York Regional Police attended the scene and viewed the surveillance video. The police observed two males in the BMW.
40The surveillance video shows a 4-door BMW sedan with no plates attached. At 9:16 a.m., the Mazda arrives. Shortly afterwards, the video shows the driver of the BMW reach out and remove the rear plate from the Mazda. The driver of the Mazda soon arrives and leaves, apparently without noticing the loss of the plate.
41Cst. Sulmona noted the following descriptions for the occupants of the BMW: the driver was male and wore a toque and dark clothing. The back right passenger was a male, white, with a moustache and goatee. He wore a black jacket with a hood, light jeans, and brown shoes.
42And so, at this point, we have a dark four door BMW sedan with no license plates and a driver who is seen removing the dealer plate from the Mazda. That man is wearing dark clothing, but it is not clear from the video if he is wearing a XCIX jacket. His coat is open, and his shirt appears to show the logo of the Toronto Raptors.
43The male who pumps gas into the BMW gets into the back seat suggesting that there are three people in the car.
Robbery – December 24, 2018
44Count nine alleges that Mr. Doad robbed Maybelle Dawinan. Count ten alleges that he was wearing a mask when he carried out that robbery.
45On December 24, 2018, around 11 a.m., Maybelle Dawinan drove to the Scotiabank at Weston and Rutherford Road in her Toyota Rav4. She arrived around 11:07 a.m and walked straight to the ATM machine inside the bank. As she passed the doors, she saw a black car idling. She went to the ATM, took out her money, then walked out and saw the black car leave the parking lot.
46Ms. Dawinan went to her car and left the bank parking lot. Ms. Dawinan made a left and saw the same car reverse across from the drive through teller window. When she was going home, she turned right onto her street and saw a black car behind her. As soon as she got onto her driveway, the car hit her car. Ms. Dawinan was not hurt but shaken up. She thought it was an accident and went to look.
47As soon as Ms. Dawinan got out of her car, she saw two men with ski masks on. She ran back into her car and locked the door. As soon as she went into her car, the driver came to her window. He started knocking on her window telling her not to call the police. He then showed her a gun in his left jacket pocket. The male then went back to his car, grabbed a hammer and the masked man struck her car window 5–10 times leaving scratches.
48She said the male said “don’t call the police” around 3 times. The gun was right by his belt area, around the waist band. It was not a big gun, more of a handgun, and it was black. She just saw the handle. She said it was a smaller handgun, it was never taken out. She described the hammer as having a brown handle, silver head.
49The male who came to her vehicle was described as 5’11 – 6 feet tall, wearing all black with a black ski mask on. She said that he was “of brown descent.” His eyes and the upper part of his face was visible through the ski mask. He had no accent.
50The other person in car also wore a ski mask. Ms. Dawinan did not see the clothing he was wearing, but it seemed dark as well. She advised that the second person did not step out of the car. She described both parties as males and did not recognize either of them.
51After this, the car reversed and turned back in the same direction as it came. Maybelle then ran inside and called her parents and sister. They called the police non-emergency line.
52Cst. Guindon canvassed the area for video surveillance. She reviewed video surveillance from 66 Moderna Drive. At 11:54 a.m., she observed a Rav4 arrive at 57 Moderna. A black sedan pulled in quickly behind and struck the corner of the Rav4. The driver exited the vehicle and approached the driver’s side door of the Rav4. The door is out of view due to a column of the porch from the house upon which the camera is located. The driver quickly returned to the vehicle and reversed it onto Sorgenti Drive before driving southbound onto Moderna and out of sight of the camera.
53The video shows the distinctive grill of a BMW motor vehicle. It also shows what appears to be a dealer license plate jutting out from the rear of the car.
54Cst. Guindon attended at the Scotiabank. She was approached by the manager while she was still in her cruiser in the parking lot. The manager advised her of an attempted robbery. Cst. Guindon observed the surveillance video inside the bank. At 10:57 a.m., a black BMW arrived and reversed into a parking spot. At 10:58 a.m., a Mercedes Benz left the spot closest to the entrance and the BMW moved into that spot and remained there for nearly 15 minutes without anyone getting out.
55At 11:13 a.m., Ms. Dawinan is seen leaving, holding money in her left hand. As she entered the parking lot, the black BMW which had been parked, reversed in the first spot west of entrance doors, and left before Ms. Dawinan did. Cst. Guindon noted the poor quality of the video and for that reason the video was not seized.
56And so, to this point, we have two men in a black BMW with a dealer plate but no other identification of Mr. Doad at the scene.
Theft of Cadillac Escalade – December 25, 2018
57Count three alleges that Mr. Doad stole a rental vehicle from Pearson airport on December 25, 2018. Count six alleges that he was in a chase from police in that vehicle.
58On Tuesday, December 25, 2018, Lloyd Morrison was working at the Avis Car Rental at Terminal 1 at Pearson Airport. Around 7 a.m., he saw one unknown male pushing a black BMW. The vehicle passed by the entrance of the car rental returns. Mr. Morrison was in a vehicle blocking the entrance gate.
59Mr. Morrison let in a vehicle that was being returned. As he was going to block the gate, a black Escalade approached very quickly and stopped at the gate. Mr. Morrison approached the driver’s side of the car, knocked on the window and asked, “what the fuck are you doing”. Mr. Morrison did not see the driver because the vehicles windows were tinted.
60The unknown driver stepped on the gas and went out through the gate, breaking it. Mr. Morrison saw another unknown male standing holding a toolbox and bag. The second male was light skinned, 5’5” with a medium build, wearing a brown coloured hooded jacket with the hood up. Mr. Morrison screamed “thief, thief”. The male dropped everything he was holding on the floor and jumped into the rear driver’s side door of the black Escalade. The vehicle drove off and a highspeed vehicle pursuit commenced.
61Police were contacted regarding the theft of the Cadillac Escalade. Cst. Karchahin collected all of the property that was located around the BMW. Some of those items are set out below.
62Photographs in evidence also show that the BMW contained, among many other things, a black Toronto Blue Jays t-shirt, the Mazda dealer license plate 984DPE, Mr. Hammoon’s Ontario plate CATM 444, and plastic packaging in the shape of a replica handgun.
63The Escalade had GPS tracking installed within it and police contacted Avis Car Rental and OnStar to obtain active tracking information regarding the vehicle.
64Cst. Suthers of Durham Regional Police received information from Peel Regional Police that the onboard GPS had tracked the Escalade to 252 Holt Road in Clarington. Cst. Suthers travelled eastbound on Highway 401 and exited on Holt Road to locate the Cadillac. At this time, he received additional information that the Cadillac was now westbound on Highway 401. So, he turned around and went in that direction. The next update he received was that the Escalade was on Harmony Road in Oshawa. As Cst. Suthers approached that exit, he heard an update that the OPP were now following the Escalade northbound on Harmony Road and Olive Avenue.
65Cst. Suthers located one unmarked OPP vehicle and one OPP vehicle with suppressed markings following the Escalade at approximately 40km/hr. Cst. Suthers followed for a short distance and then activated his emergency lights and moved around the OPP vehicles to get in front of the Escalade. As he did this, the Escalade accelerated at a high rate of speed northbound on Harmony Road, crossing into the southbound lanes. The Escalade then turned eastbound on Taunton Road and continued at a high rate of speed and failed to stop at a red light located at the plaza entrance of Taunton Road and Harmony Road. The vehicle continued through the intersection at 120km/hr.
66The Escalade then continued eastbound reaching speeds of 170km/hr moving into and out of the westbound lanes. As the vehicle passed through Taunton Road and Trulls Road, it crossed over into the westbound lanes as it crested the hill just east of Courtice Road.
67At this time, the pursuit was terminated, and Cst. Suthers pulled over to the top of the hill just west of Courtice Road. From his location, he could see the Escalade continue eastbound, moving into the westbound lanes causing two oncoming vehicles to have to move to the north shoulder to avoid a collision.
68From that point, the parties agree on the following timeline:
a. 7:52 a.m., the Escalade was disabled by On-Star on Highway 407 at the Ritson Road off ramp. OPP observed 2 males exit the vehicle and run into the wooded area underneath the Ritson Road North overpass and Highway 407.
b. 8:10 a.m., a call is received from a homeowner advising 2 males were in his backyard at 3015 Ritson Road.
c. 8:16 a.m., canine and tactical officers start to track the area from 3015 Ritson Road north into heavily treed bush areas.
d. 8:23 a.m., black track pants and Mr. Singh’s BMW plate CDDK 429 ownership were located during the canine track.
e. 9:02 a.m., the canine dog located Mr. Doad in the wooded area. Mr. Doad attempted to run, the dog chased him and apprehended him.
f. 9:05 a.m., canine and tactical officers arrested Mr. Doad who identified himself as “Amarpreet Singh”. He was wearing a black winter toque, black pants, black jacket with the symbol XCIX and a black Toronto Raptors t-shirt. The ownership documents for the stolen BMW was found on the ground, in the vicinity of where the Mr. Doad was arrested.
69Evidence at trial, in addition to the Agreed Statement of Facts, confirmed that, at the time of his arrest, Mr. Doad was wearing dark pants with the familiar three stripes of the Adidas logo.
70The stolen BMW from 43 Hull Street was towed from the airport to the identification unit at Peel Regional Police. Fingerprints were located on the outside of the front passenger door on the BMW. The fingerprints belonged to Mr. Doad. Located in the BMW was packaging for a replica air gun.
71The Cadillac Escalade was seized by Durham Regional Police and taken to the identification unit for processing.
72No firearm has been recovered.
Analysis
73The Crown concedes that the charge of robbery relating to Ms. Dawinan is, at most, an attempted robbery.
74The Crown further concedes that the weapon in play cannot be proven to be a firearm; it was likely an imitation firearm. As such, it is not a “firearm” as defined by the Criminal Code. Accordingly, I find that the counts of robbery with a weapon can only be considered robbery charges.
75I must evaluate all of the circumstantial evidence to decide if Mr. Doad’s guilt is the only reasonable or rational conclusion to be drawn from the evidence. Even if I think that Mr. Doad is likely or probably guilty, that is not guilt beyond a reasonable doubt.
76Working backwards in the chronology of events, the Escalade was tracked from the airport to Ritson Road by OnStar. Mr. Doad was then tracked from the Escalade to the point of his arrest by the canine unit.
77Two men are tracked from the Escalade. The vehicle does not appear to have stopped at any time; I have no evidence to suggest that it did. When last seen at the airport, the passenger is dressed differently than Mr. Doad. I have no hesitancy in finding beyond a reasonable doubt that Mr. Doad was the driver; on the circumstantial evidence that is the only rational result. There can be no doubt that Mr. Doad failed to stop for police. He is therefore guilty of the theft of the Escalade and failing to stop the motor vehicle pursuant to counts three and six.
78Mr. Doad’s fingerprints are on the stolen BMW. At the time of his arrest, he was wearing the same pants as the man near the scene of the home invasion, and at the Esso station where the stolen cell phone was tracked. The man at the gas station had on the same Toronto Blue Jays shirt that was found in the BMW. I agree with the defence that there are many dark BMW’s, Adidas pants, and mass-produced shirts and distinctive jackets; but human experience teaches that there will be few of those related to the same man within 100 hours. I can safely eliminate coincidence.
79I draw the reasonable inference that Mr. Doad was involved in the home invasion and robbery of the BMW because of the following circumstances. Two men are seen approaching Mr. Singh’s house and one is wearing the same type of pants as Mr. Doad on arrest. Two masked perpetrators carry out the robbery. Mr. Singh’s license plate is found in the BMW after Mr. Doad is arrested. Mr. Doad’s fingerprints are on the BMW. Mr. Doad is guilty, beyond a reasonable doubt, of counts one and two.
80The distinctive XCIX jacket combined with the BMW allows the further inference that Mr. Doad was at the gas station robbery. However, I am not persuaded beyond a reasonable doubt of his guilt of those offences. There were three individuals in the BMW. One put on the distinctive jacket, but I do not know which one did. There is no evidence, other than the jacket and vehicle, that independently links Mr. Doad to the man who carried out the robbery. See: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228. There were three men in the car and the third is never seen. Mere presence at the crime scene does not make an accused guilty. That leaves me with a doubt as to whether it was Mr. Doad who carried out the robbery in the gas station because it could have been either one of two men within the BMW wearing the jacket. Mr. Doad is found not guilty of counts four and five.
81The man stealing Mr. Hannoon’s license plate is seen wearing a Raptors shirt and a XCIX jacket; these are the same clothes that Mr. Doad is wearing or are found near him at the time of his arrest. A black BMW is present at the time of the theft. Mr. Doad’s fingerprints are on the vehicle. Mr. Hannoon’s plate is in the BMW at the time of Mr. Doad’s arrest. I find Mr. Doad guilty of count seven because that is the only rational conclusion that can be made.
82It is clear from the surveillance video at the gas station that the driver of the unlicensed BMW reached out to steal the dealer plate. Another video clearly shows that the driver was wearing dark clothing and the same Toronto Raptors shirt that Mr. Doad was wearing at the time of his arrest. The dealer plate was in the BMW upon which Mr. Doad’s fingerprints were found. I therefore draw the only rational inference that Mr. Doad is guilty of count eight.
83While a BMW with a dealer plate was involved in the attempted robbery of Ms. Dawinan, there is no other evidence that connects Mr. Doad to that offence. I cannot be sure whether Mr. Doad was the man who approached Ms. Dawinan’s car or one of the other two who were in attendance from time to time. While I may be very suspicious of his involvement and believe that Mr. Doad is likely involved in that offence, that belief is not proof beyond a reasonable doubt. I find him not guilty of counts nine and ten.
Decision
84Accordingly, Mr. Doad is found guilty of:
(a) Count one, the included offence of robbery (of the BMW);
(b) Count two, having his face masked while committing an indictable offence (the home invasion);
(c) Count three, theft of the WTH Rental ULC vehicle (the Escalade);
(d) Count six, fail to stop while pursued;
(e) Count seven, theft of the license plate of Mr. Hannoon;
(f) Count eight, theft of the license plate of the Mazda.
85Mr. Doad is found not guilty of the balance of the indictment.
Justice G.D. Lemon
Released: September 22, 2021
COURT FILE NO.: CR-21-640 (Brampton File)
DATE: 2021 09 22
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Amarpreet Doad
Defendant
judgment
Justice G.D. Lemon
Released: September 22, 2021