Court File and Parties

COURT FILE NO.: 17-R2037 DATE: 2021/09/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAHMYLE JOHNSON and KYLE BANCROFT

COUNSEL: John Semenoff for the Crown Leo Russomanno for Mr. Johnson Tobias Okada-Phillips for Mr. Bancroft

HEARD: March 22-26, 29, 30, 31; April 1,2; and July 2, 9, 2021

VERDICT

Justice Sally Gomery:

[1] In the late afternoon of August 22, 2016, two men entered the house at 4407 Upper Dwyer Hill Road in Ottawa. They came in through an unlocked backdoor off the kitchen. Theresa Carron lived in the house with her husband but was alone that afternoon. She was in the bathroom and heard the doorbell ringing, then someone knocking on the door. By the time she arrived in the kitchen, someone was opening the door slowly. She saw the barrel of a gun first. It was a very long, large barrel with a white ring or spot near the end. The gun was initially pointed down, and then, as the door opened, Mrs. Carron saw two men and the gun pointed at her.

[2] Mrs. Carron told the robbers that she had no money in the house. The shorter robber asked about her husband’s money and she told him that it was kept at the auto parts yard nearby where he worked. She said she might have some money in her purse, which was in the Carron’s minivan parked in a detached garage. The shorter robber went out of the house to retrieve the purse while the taller robber remained inside. Mrs. Carron asked him if they would hurt her, and he replied that they would not if she gave them what they wanted. This was the only time that the taller robber spoke to Ms. Carron during the home invasion. The shorter robber otherwise did all of the talking. He and the taller robber spoke but she could not overhear what they said.

[3] When the shorter robber returned with Mrs. Carron’s purse, she realized that her wallet was missing. She then recalled that she handed it to her daughter-in-law the day before so she could pay for parking. The two robbers then made Mrs. Carron take them around the house, at gunpoint, so they could find something valuable to steal. They located some old currency in an office safe, some electronic equipment and jewelry.

[4] The shorter man appeared to be texting on his phone a couple of times and he talked to someone on the phone once. During this call, Mrs. Carron overheard him saying “okay, go”. The robbers left the house and drove away in the Carron’s 2013 black Dodge Caravan. The robbers abandoned it a few kilometres away in a parking lot near a Costco in Kanata. The vehicle was recovered when someone noticed that it was parked in an employee lot with the side door wide open.

[5] After the robbers drove off, Mrs. Carron waited a minute or two then ran across the road to her husband’s auto parts yard, from which someone phoned 911 at 4:33 p.m. She could not phone from her house because the robbers had made off with her cell phone and ripped the landline phone off the wall. She estimated that they were in the house for a total of ten to fifteen minutes.

[6] The Crown says that Jahmyle Johnson is one of the robbers and that his co-accused, Kyle Bancroft, masterminded the crime. It contends that Mr. Bancroft arranged for Mr. Johnson and the second robber to travel from Toronto to Ottawa, put them up overnight in a local motel, and drove around with them on August 22, 2016 to scout potential robbery targets. After the Carron house was chosen to rob, Mr. Bancroft allegedly dropped off Mr. Johnson and the other man a short distance down the road from it. The plan was for Mr. Bancroft to return to pick the two men back up on Upper Dwyer Hill Road after the robbery. When they unexpectedly stole the Carron’s minivan, Mr. Bancroft drove to the Costco parking lot to meet them there. He then arranged for their transportation back to Toronto.

[7] The Crown’s case relies heavily on the evidence of Cary St. Michael. Mr. St. Michael was working at Mr. Bancroft’s lumberyard in August 2016. He was arrested in July 2017 because the police suspected that he and Mr. Bancroft were involved in scheme to defraud an insurance company. Over a series of interviews after the arrest, Mr. St. Michael told police that he and Mr. Bancroft had been involved in other criminal activities, including the Carron robbery. He said that he had accompanied Mr. Bancroft on August 22, 2016 as they scouted out potential targets to rob with the robbers, dropped them off at the Carron house with a gun, and picked them up again after the robbery. Mr. St. Michael knew the robbers only by their nicknames “Convict” and “Juice”. In August 2017, he picked Mr. Johnson’s photo out of a lineup and said it “could be” Convict.

[8] Mr. Johnson and Mr. Bancroft were arrested in connection with the Carron robbery a few weeks later. They are being tried for armed robbery, conspiracy, breaking and entering to commit a robbery, and unauthorized possession and transportation of a prohibited firearm. Mr. Johnson is also being tried for the theft of the Carron’s minivan. He was charged with two other offences based on breaches of prior orders, but the Crown advised in closing submissions that it was not pursuing them.

Summary of the evidence at trial

Evidence about the robbery itself

[9] The account of the robbery at the beginning of this decision is largely based on Theresa Carron’s testimony. Even though the robbery was a stressful event, she described what happened in a straightforward, dispassionate and unexaggerated way. She was not argumentative in cross-examination. She made appropriate admissions and qualifications. She was painfully honest about what she could and could not remember about the robbers.

[10] The physical evidence gathered by police during their investigation corroborated Mrs. Carron’s testimony. The photos they took of the interior of the Carron house were consistent with her account. When the Carrons’ Dodge Caravan was found on the evening of August 22, the police found a silver charm bracelet in it that Mrs. Carron identified as an item that had been stolen.

[11] I find that Mrs. Carron is a credible and reliable witness and that she provided an accurate account of the robbery.

The evidence of Cary St. Michael and detectives who interviewed him

[12] I will first summarize Mr. St. Michael’s evidence in chief and his statements to police, and then consider the reliability of his evidence.

Mr. St. Michael’s evidence in chief

[13] Mr. St. Michael began working for Mr. Bancroft in 2014 or 2015. He set up machinery and did other tasks in Mr. Bancroft’s lumberyard next to his house at White Lake. He also made deliveries using Mr. Bancroft’s pickup truck. He was paid $12 per hour in cash and worked five to seven days per week.

[14] Mr. St. Michael admitted that he had participated in the Carron robbery. He said that the other participants were Mr. Bancroft and two Black men from Toronto whom he knew only by their nicknames, Convict and Juice.

[15] Relying on the co-conspirators’ exception to the hearsay rule, the Crown asked Mr. St. Michael about arrangements made prior to August 21, 2016. He testified that Mr. Bancroft had found Convict and Juice through a friend named Buss Head and that he overheard Mr. Bancroft on the phone discussing this. Mr. Bancroft subsequently told Mr. St. Michael that he had arranged for Convict and Juice to get a ride share from Toronto to Ottawa, for the purpose of committing a robbery. For reasons that will become clear later on, I find that I do not need to rule on the admissibility of this evidence.

[16] According to Mr. St. Michael, he and Mr. Bancroft picked up Convict and Juice at the Bayshore Shopping Centre on August 21, 2016 in the early afternoon. They later dropped the two men off at a motel in Carleton Place for the night. Mr. St. Michael testified that Mr. Bancroft had arranged for a room but that he went into the reception area to pay for it.

[17] On August 22, Mr. St. Michael picked up Convict and Juice at the motel and they drove together to pick up Mr. Bancroft in White Lake. Mr. St. Michael initially testified that they drove to Mr. Bancroft’s house but that Convict and Juice did not go inside. He then corrected himself and said that Mr. Bancroft had told him not to bring the two men to his house because he did not trust them. He said that they instead picked Mr. Bancroft up somewhere in the village of White Lake.

[18] Mr. St. Michael testified that the four men drove around for about two hours on August 22, scouting out possible robbery targets. Mr. Bancroft was driving, Mr. St. Michael was in the front passenger seat, and Convict and Juice were in the backseat. They considered robbing a hardware store in Eganville, a private residence near Arnprior, and Mr. Carron’s business, Ed’s Salvage, before settling on the Carron house.

[19] According to Mr. St. Michael, the robbery took place a couple of hours later. In the meantime, Mr. St. Michael left the other three men to get a gun from his own house about 30- minutes’ drive from White Lake. He testified that Mr. Bancroft asked Convict and Juice whether they had brought any weapons with them from Toronto. When they said they had not, Mr. Bancroft told Mr. St. Michael to fetch a gun that Mr. St. Michael had been storing for him. The gun was a Remington 1100 semi-automatic with a polychoke at the end of the barrel. According to Mr. St. Michael, the Remington was being kept at his place because Mr. Bancroft, who had been charged with weapons offenses in the past, did not want to get caught with a gun in his house.

[20] Mr. St. Michael did not know whether Convict and Juice remained with Mr. Bancroft during the hour or so he was getting the gun, or more generally what they were doing during this time. He likewise could not remember what any of them did during the remaining time before the robbery.

[21] After Mr. St. Michael returned to White Lake with the gun, the four men drove to Upper Dwyer Hill Road. According to Mr. St. Michael, Mr. Bancroft was again driving. Convict and Juice were dropped off near the Carrons’ house. Mr. St. Michael recalled that Juice had the Remington when they got out of the truck. The plan was for Mr. Bancroft and Mr. St. Michael to return to pick up Convict and Juice after they robbed the house. In the meantime, they drove around keeping a lookout.

[22] Mr. St. Michael thought that Mr. Bancroft and Convict were messaging each other during the robbery. He did not recall that Mr. Bancroft spoke on the phone during the robbery. Convict eventually messaged Mr. Bancroft that he and Juice had stolen a van and were driving towards Ottawa. He contacted them again a short time later to tell them that he and Juice were near a Costco in Kanata. Mr. Bancroft and Mr. St. Michael drove there to pick them up. Mr. St. Michael recalled that the two robbers were crouched behind pine trees by the road, carrying a couple of duffle bags and the Remington, when they arrived. Mr. Bancroft said they should leave the gun there, but Convict said they had to take it because it might have Juice’s fingerprints on it.

[23] Mr. St. Michael testified that he and Mr. Bancroft had seen police looking for the perpetrators of the robbery as they drove to Kanata. They decided that they needed to get Juice and Convict out of the city and drove them to Gananoque so they could get a bus back to Toronto.

[24] In his evidence in chief, Mr. St. Michael thought that he might have seen Convict again after August 22, 2016, in Napanee or Toronto for half an hour to an hour. They did not interact. Mr. St. Michael was with Mr. Bancroft at the time.

[25] Mr. St. Michael took the Remington back to his place after the robbery. He later turned it over to police. When shown pictures of the Remington, Mr. St. Michael identified it as the gun used in the robbery. He said it was a very distinctive gun because of the polychoke.

[26] Mr. St. Michael testified in chief that he quit his job with Mr. Bancroft around March 2017. They were not on bad terms, but just went their separate ways. Mr. St. Michael then got a job with a former employer.

Mr. St. Michael’s account to the police of the Carron robbery and his involvement in it

[27] Mr. St. Michael gave three videotaped statements to police in July and August 2017. He also had conversations with detectives that were not recorded but were summarized in the officers’ notes. The interviews and conversations were the focus of defence cross-examination of both Mr. St. Michael and the two officers who interacted with him, Detective Larry Snider and Detective Chris Fahey.

[28] On July 26, 2017, Mr. St. Michael was pulled over while driving and arrested by Detective Snider, a member of the Ontario Provincial Police working in the Renfrew detachment. Detective Snider had been investigating Mr. Bancroft’s report that a wood processor had been stolen from his yard. Earlier in 2017, Detective Snider had come to the lumberyard to take Mr. Bancroft’s statement about the theft. During this visit, Mr. St. Michael confirmed that the processor had been stolen. Detective Snider later came to believe that the processor had not been stolen and that Mr. Bancroft had filed both a false police report and a fraudulent insurance claim. When he was arrested on July 26, Mr. St. Michael was charged with giving a false statement. He was also facing an unrelated break and enter charge.

[29] Mr. St. Michael gave a videotaped statement the day he was arrested. From outset of the July 26 interview, Detective Snider said that he believed that Mr. St. Michael was a “pawn” of Mr. Bancroft, whom he described as a “puppeteer” who took advantage of people. In the course of the statement, Mr. St. Michael confessed to his involvement in the wood processor fraud. He told Detective Snider that Mr. Bancroft had directed him and another individual, Roy Wiggins, to transport the processor to Maniwaki where they sold it for $10,000. He admitted that he had lied to Detective Snider about it when he visited Mr. Bancroft’s lumberyard. Detective Snider asked him about another fraudulent scheme involving a second wood processor in 2015. Mr. St. Michael admitted that he had been involved but said “all I did was hold the money”.

[30] Mr. St. Michael also admitted to his involvement in other crimes during the July 26 interview. He confessed that he and Mr. Wiggins broke into a shed or trailer and stole some tools that they then resold in Ottawa. Mr. St. Michael could not remember how much he received for his role in the theft. He also admitted that he, Mr. Wiggins and Mr. Bancroft sometimes drove around Ontario and used counterfeit U.S. currency to make small purchases, so that they would get real Canadian currency as change. According to Mr. St. Michael, Mr. Bancroft procured the counterfeit bills and Mr. Wiggins made the purchases. His role during these trips was to keep watch to make sure they were not being followed. He acknowledged, however, that he was aware that the American money was fake and that this was a “scam”. Finally, Mr. St. Michael admitted that he was involved in the theft of a tractor by Mr. Wiggins.

[31] During the interview, Mr. St. Michael asked Detective Snider for help so that he would not lose his job. Detective Snider said that he could not make any promises. He added, though, that if Mr. St. Michael owned up to any offenses and put his best foot forward, he would mention his help to the Crown “to get you your best possible deal, because of your cooperation and honesty”.

[32] Mr. St. Michael reattended at the Renfrew police station on August 2 to be fingerprinted and to bring Detective Snider incriminating emails and text messages from Mr. Bancroft. When they met, Mr. St. Michael told Detective Snider that he had information about the Carron robbery, which was being investigated by the Ottawa police. They then had a discussion that was recorded in Detective Snider’s notes, followed immediately by a second, on-camera interview.

[33] Detective Snider’s August 2 notes indicate that, during the off-camera discussion, he asked Mr. St. Michael if there was anything else he knew about or wanted to clear up. Mr. St. Michael said that he had further information but did not want to face further charges. Detective Snider told him that he could not promise anything without first knowing the details, but that he would not be interested in charging Mr. St. Michael if the offences were fairly minor or if his involvement was as a follower rather than a leader. If, on the other hand, Mr. St. Michael had been involved in a substantial or violent offence, he might have to be charged.

[34] Still off-camera, Mr. St. Michael then said that his information related to the Carron robbery. Detective Snider told him that this was a “rather significant” offence and asked whether he merely knew about it or had been involved. Mr. St. Michael said he was involved and Detective Snider asked whether he played a minor or major role. Mr. St. Michael replied that he drove the robbers and stayed out in the vehicle. Detective Snider suggested that this did not sound too bad and that he would give the Ottawa police a call to let them know about Mr. St. Michael’s information. Detective Snider testified that, based on what Mr. St. Michael told him before the videotaped interview on August 2, he understood that he was the getaway driver. They also discussed another robbery in Toronto.

[35] According to Detective Snider’s notes of the off-camera discussion, Mr. St. Michael mentioned again that he wanted to get matters off his chest but was worried about more charges. In response to specific questions asked by Detective Snider, he denied knowing about any more break-ins or anything about firearm offenses.

[36] During the videotaped interview on August 2, Detective Snider asked Mr. St. Michael to confirm that “you had said you had just drove some individuals to the location [of the robbery]”. In cross-examination, Mr. St. Michael said that he had actually told Detective Snider that it was Mr. Bancroft, not him, who did the driving on August 22, 2016. He said that he did not correct the officer’s phrasing during the on-camera interview because he did not want to interrupt him. During his cross-examination, Detective Snider said that Mr. St. Michael did not clearly state whether he was the driver, even though his notes at the time suggested that he was. Even if I accept this, though, Mr. St. Michael clearly understated his involvement in the Carron robbery when he first discussed it with Detective Snider. He did not mention that he picked up Juice and Convict and drove them to a motel the night before, or that he went inside with them to pay for the room, or that he drove around with them the next day scouting targets, or that he supplied the gun used in the robbery. According to Mr. St. Michael, he did not disclose these details to Detective Snider because he thought it would make more sense to disclose them to the officer actually investigating the robbery. The fact remains that his account to Detective Snider on August 2 was consistent with a narrative whereby Mr. St. Michael was only “minorly involved”.

[37] During the on-camera interview, Detective Snider noted that the Ottawa police were responsible for the investigation of the robbery and that they might or might not charge Mr. St. Michael. He added, however, that he would be willing to speak to the Ottawa police to tell them that Mr. St. Michael had been cooperative and that his involvement in various crimes was possibly “very minor”. He followed through the next day when he called the Ottawa police to tell them about the information provided by Mr. St. Michael with respect to the Carron robbery. During this phone conversation, Detective Snider suggested that it might be beneficial to use Mr. St. Michael as a witness rather than charge him.

[38] That same day, Detective Snider met with Mr. St. Michael again to discuss his information about another offence. On this occasion, they had a further “off the record” discussion about the Carron robbery. Mr. St. Michael said that Mr. Bancroft had hired two Black men to commit a robbery for him. Although the plan was to rob Ed’s Salvage, the two men phoned them to tell them that the plan had changed and that they had stolen a van. During this conversation, Mr. St. Michael told Detective Snider that he did not get paid for his role in the robbery and was not really involved.

[39] On August 9, Detective Snider met Detective Fahey. He told him that he did not think that Mr. St. Michael was involved at all in the Carron robbery, but was just a witness. The next day, he contacted Mr. St. Michael to tell him that arrangements had been made for a meeting with Detective Fahey on August 15. Detective Snider told Mr. St. Michael that “they agreed that he would be treated as a witness at this time”.

[40] On August 15, Detective Snider drove Mr. St. Michael to Ottawa for the appointment with Detective Fahey. After they arrived at the station, Mr. St. Michael mentioned for the first time that he had the gun that was used during the Carron robbery, and that he wanted to turn it over to police. In cross-examination, Detective Snider acknowledged that he was surprised by this news. The interview with Detective Fahey nonetheless proceeded as planned.

[41] During the August 15 on-camera interview, Mr. St. Michael gave an account of the Carron robbery largely consistent with his evidence in chief at trial. In connection with the gun, however, he said that “we must have went back to his place, to [Mr. Bancroft’s] place in White Lake to get the gun”. In cross-examination, Mr. St. Michael admitted that this was untrue. He fetched the gun from his own house, where he had been storing it for Mr. Bancroft. Mr. St. Michael acknowledged that he lied to Detective Fahey about this to suggest that he had only a minor role in the Carron robbery.

[42] During the August 15 interview, Mr. St. Michael also told Detective Fahey that he had not had any contact with Convict or Juice since the robbery the year before. He repeated this at the preliminary inquiry in this case. At trial, Mr. St. Michael admitted that he saw Convict at least twice after the robbery, for the purpose of selling him firearms that he had altered so that they would hold rounds above the legal limit. He stated that this had been arranged by Mr. Bancroft. He said he lied to the police and the court about his later interactions with Convict because he wanted to disassociate himself from Mr. Bancroft and he did not want his firearm trafficking activities to come to light.

[43] After the meeting with Detective Fahey on August 15, Mr. St. Michael participated in a photo lineup, at which he picked out Mr. Johnson’s photo. I will return to this evidence later.

[44] Mr. St. Michael entered the witness protection program in late 2017. He denied that his rent is being subsidized by the police or that he has ever received any payments for his assistance in this case, beyond reimbursement for some expenses when he relocated.

The reliability of Mr. St. Michael’s evidence

[45] Mr. St. Michael’s account of the Carron robbery is central to the Crown’s case. His credibility is, however, an issue. He admitted to participating in the robbery as well as several other crimes, to lying, misleading or disclosing facts selectively to the police, and to lying on the stand.

[46] When he testified at trial, Mr. St. Michael was 44 years old. Prior to 2018, his criminal record consisted of a single conviction for drunk driving in 1996, when he was 19 years old. He admitted, however, that he had been involved in a range of criminal activity after he began working for Mr. Bancroft. Beyond his involvement in the preparation for and commission of the Carron robbery, Mr. St. Michael admitted that he assisted in a fraud; signed a false bill of sale; gave a false statement to the police; committed a break and enter; helped to steal a tractor; travelled around Ontario with Mr. Bancroft and Mr. Wiggins passing counterfeit U.S. currency; participated in a robbery of a Canadian Tire store; and bought firearms, altered them, and sold them to others.

[47] Even if I were to accept that almost all of this criminal activity was orchestrated by Mr. Bancroft, I agree with the defence that Mr. St. Michael’s involvement shows him to be a person who was willing to break the law. Some of the offences in which he was involved were very serious. This has obvious implications regarding the extent to which I can rely on his evidence in this trial.

[48] I am not persuaded that Mr. St. Michael reached a clear understanding, let alone a firm deal, with the police during his off-camera discussion with Detective Snider on August 2, 2017, or that this discussion was pursued off-camera for an improper purpose. I generally found Detective Snider to be a credible witness who held up well under cross-examination. His explanation for what occurred that day rang true. He testified that he did not initially take Mr. St. Michael into an interview room on August 2 because he did not expect him to spontaneously confess to yet another offence. It would have obviously been preferable for him to begin recording Mr. St. Michael before asking him any further questions. I believe, however, that he was genuinely taken by surprise. If he had an improper purpose, he would not have taken 11 pages of notes about their off-camera conversation and would not have asked Mr. St. Michael for an official statement under caution. I also accept Detective Snider’s evidence that he did not make Mr. St. Michael any firm promises about his ability to assist him with potential charges for his involvement with the Carron robbery.

[49] Having said this, it is clear from Detective Snider’s notes, and from the transcript of the July 26 and August 2 on-camera interviews, that Mr. St. Michael knew he was much more likely to avoid serious charges if he downplayed his involvement in the Carron robbery and in other crimes and emphasized Mr. Bancroft’s role. Mr. St. Michael undeniably had motives to lie during his police interviews. He wanted to keep his job and to avoid being charged with serious offences. He also expressed some resentment of how he had been exposed to serious charges due to his involvement with Mr. Bancroft without getting any meaningful compensation. By cooperating in the investigation and prosecution of the Carron robbery and other crimes, and by identifying Mr. Bancroft as the ringleader in these crimes, Mr. St. Michael took on the role of a Crown witness rather than the primary target of any investigation. Despite his confessed involvement in many other offences, he was convicted only of breaking and entering, public mischief and the use of a forged document, for which he received a conditional sentence.

[50] Finally, Mr. St. Michael’s account of his involvement in criminal activity and his role in the Carron robbery changed over time. Here are some examples:

• During the July 26 interview, he told Detective Snider that all he did was “hold the money” in the context of the second fraudulent transaction with respect to a wood processor. This was not true; he later admitted that he also signed a false bill of sale.

• During the off-camera discussion with Detective Snider on August 2, Mr. St. Michael denied that he was involved with or knew of any firearms offences. In cross-examination in this trial, he admitted that he purchased guns, modified them, and sold them to other people, and that he had never mentioned this to police.

• During this same discussion, Mr. St. Michael denied being involved in any other robberies. A month later, he told Detective Snider about his involvement in a robbery of a Canadian Tire store.

• When describing his involvement in the Carron robbery to Detective Snider on August 2, he did not disclose that he had the Remington ostensibly used in the Carron robbery. He mentioned this for the first time on August 15, just before he was interviewed by Detective Fahey.

• During the August 15 interview with Detective Fahey, Mr. St. Michael lied about where the gun was being stored prior to the robbery. He also lied to him about contact he had with Convict after August 22, 2016, in the context of trafficking firearms.

• Mr. St. Michael also lied to the court, at the preliminary inquiry, when he denied further contact with Convict after the Carron robbery.

[51] Mr. St. Michael did not strike me as a clever or cunning person. He came across as someone who was unsophisticated, confused, and overwhelmed by the turn that his life has taken over the past five years. I am not entirely convinced that he withheld information from the police or the court strategically. He only became involved in serious criminal activity after he began working for Mr. Bancroft. Given his admitted participation in various crimes including fraud, however, his motivation to lie to advance his own interests at Mr. Bancroft’s detriment, the evolution of his account to police, and his admission that he lied during his interviews with police and at the preliminary inquiry, Mr. St. Michael is the definition of a Vetrovec witness.

[52] In these circumstances, had this been a jury trial, I would have been required to warn the jurors of the dangers of relying on Mr. St. Michael’s testimony: see Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 SCR 811, at p. 831; R. v. Khela, 2009 SCC 4, [2009] 1 SCR 104, at para. 5; and R. v. Brooks, 2000 SCC 11, [2000] 1 SCR 237, at para. 4. As the trier of fact, I must approach Mr. St. Michael’s evidence with such a warning in mind. I cannot rely on it unless it is corroborated by other reliable evidence that reassures me that his account of the robbery is credible.

Other evidence called by the Crown

[53] The Crown called evidence from a variety of other witnesses on four other topics: (i) the location of the Carrons’ minivan at various times on August 22, 2016; (ii) the company kept by Mr. Bancroft around the time of the robbery; (iii) arrangements for a motel room near White Lake on August 21, 2016; and (iv) cellphone communications.

(i) Evidence with respect to the minivan

[54] Justin Critchley testified that, on August 22, 2016, he called 911 about a black Dodge Caravan that tried to pass him aggressively as he was driving from Petawawa to Ottawa. The licence plate he gave to police matched the Carrons’ minivan. Mr. Critchley testified that he saw two people inside. He thought they were Black but admitted that he could not really tell because the windows were tinted.

[55] Christopher Linton, a security guard at the Kanata Costco, testified about noticing a black van with its side door open in the employee lot on the evening of August 22, 2016. He told his manager, who called the police. Police officers who testified confirmed that the Dodge Caravan recovered at the Costco parking lot was the Carrons’ minivan.

(ii) Evidence of Steven Couvieau

[56] Steven Couvieau is a resident of White Lake who has known Mr. Bancroft for many years. He recalled that, two or three days before the Carron robbery, he encountered Mr. Bancroft in a white truck with Mr. St. Michael and two Black men. Mr. Bancroft was driving and Mr. St. Michael was in the front passenger seat. This encounter took place in the village of White Lake. He recalled that he and Mr. Bancroft discussed a gravel delivery.

(iii) Evidence about the motel booking

[57] Tonia Goodier was the manager of the 7 West Hotel in 2020. She produced a record showing that, on August 21, 2016, a room was booked by Cary St. Michael for one night for $80, paid in cash. Ms. Goodier said that Mr. St. Michael would have had to produce photo identification when he paid for the room.

(iv) Evidence about cellphone communications

[58] The Crown led evidence about cellphones allegedly used by Mr. Johnson and Mr. Bancroft, and communications using those phones in the period of August 18 to 23, 2016.

[59] Cecilia Kwok was Mr. Johnson’s probation officer from February 2016 to March 2017. She testified that, on April 20, 2016, Mr. Johnson provided her with a new telephone number, 647-641-4656 (the “4656” number). She and Mr. Johnson communicated using this number in July and early August 2016.

[60] Constable Amanda Carruthers testified about her involvement in the execution of a search warrant for Mr. Bancroft’s residence in White Lake on December 1, 2017. She testified that the police seized 11 cellphones, including a Samsung Galaxy phone (the “Samsung phone”). According to her notes from the search, she found the Samsung phone on a couch. I found Officer Carruthers to be a straightforward and credible witness and accept this evidence. I also accept her evidence that she did not take any of the phones apart, but simply photographed them.

[61] Special Constable Rachel Anderson testified about an extraction report showing data downloaded from the Samsung phone pertaining to the period between August 14 to December 1, 2016. She explained that the cellphone required a SIM card to be used on carriers’ networks. The card had an identification that was tied to the number of the phone’s handset. The telephone number for the Samsung phone was 613-315-5268 (the “Samsung number”). When asked if the user of the phone could have swapped out the SIM card such that there would be data on the phone associated with another SIM card and another telephone number, she said no.

[62] The extraction report shows a list of usernames for various functions on the Samsung phone, a list of saved contacts, a call log and a log of text messages.

[63] The username for gmail and three other applications was “forestkinglogging”. The list of contacts on the phone includes a number (647-708-4516 or the “4516 number”) listed for a contact labelled “convict friend”. The 4656 number, the one that Mr. Johnson gave to his probation officer, was listed for two contact names, “AA Konvic” and “Convic”. Officer Anderson explained that multiple contact names could be associated with the same number if the phone’s user decided to modify the contact name. Finally, the contact list showed a number (613-552-4606) for a contact identified alternatively as “Giggles” or “Bush man”. Cary St. Michael testified that Giggles was Mr. Bancroft’s nickname for him. He also testified that Mr. Bancroft was sometimes referred to as “Big Guy”. I accept this because it is consistent with Mr. Bancroft’s appearance.

[64] The call log shows that someone using the 4516 number phoned the Samsung number seven times between August 19 and 21, 2016. One call was made from the Samsung number to the 4516 number. No calls between these two numbers were recorded on August 22. Officer Anderson testified that the record of some calls, including the calls between August 19 to 21 involving the 4516 number, had been deleted by the phone’s user. The record of these calls was recovered during the extraction process, but it was impossible to determine how many more were not recovered because the data associated with them may have been overwritten. As a result, there may have been additional calls between these two numbers in addition to the eight calls in the three days prior to the Carron robbery shown in the extraction report.

[65] The messages log shows that many text messages were exchanged between the Samsung number and both the 4516 number and the 4656 number during the relevant period. The contents of some of these messages was recovered. The report also showed text messages were exchanged between the Samsung phone and other phones, including Mr. St. Michael’s phone. The Samsung phone’s user had again deleted all of these messages. Some deleted messages may not have been recovered. The content of some messages was also unrecoverable.

[66] I infer that Mr. Bancroft was the author and recipient of texts sent and received on the Samsung phone on August 18 to 21, 2016. Mr. St. Michael admitted in cross-examination that Mr. Bancroft sometimes lent him this phone. I find that Mr. Bancroft was its primary user, however, based on his possession of it in 2017, the “forestkinglogging” username, and the inclusion of Mr. St. Michael’s number in the contact list. I conclude that Mr. Bancroft was the person sending and receiving texts during the relevant period because they addressed him as “big guy”, Mr. Bancroft’s nickname.

[67] On August 18, 2016 messages were exchanged between Mr. Bancroft on the Samsung phone and “AA Konvic/Convic” at the 4656 number. Mr. Bancroft asked if Konvic was “ok for Friday” and whether he had “got one guy to come” with him. Konvic replied affirmatively and asked Mr. Bancroft to come and get them. This is the last exchange between these two numbers until August 23, 2016. On August 19, however, a message was sent from the 4516 number (the number labelled “convict friend”) to Mr. Bancroft on the Samsung phone. It read: “Yoo big guy it’s konvic are you coming down for me and my boy”. About fifteen minutes later, Mr. Bancroft sent a text message to another number (the “8733 number”) asking: “do u have room for two from Toronto to Ottawa in the morning” and then, a minute later, responded to the earlier message from the 4516 number saying: “yes trying to get u a ride share at 7 pm tonight or 10am sat”.

[68] Over the next two days, there were further messages between Mr. Bancroft and the 4516 number and the 8733 number about possible ride share arrangements from Toronto to Ottawa and their cost. After some back and forth and a few phone calls, Mr. Bancroft sent a text to the 4516 number at 9:03 a.m. on August 21 with a confirmation number and the last digits of a plate number. This was evidently the finalization of arrangements for a rideshare for Konvic and his friend.

[69] I find that the person who was texting Mr. Bancroft on the 4656 number on August 18 continued to text him using the 4516 number on August 19, 20 and 21. The person who began sending texts to him using the 4516 number the next day wrote “Yoo big guy it’s konvic”. A similar message was sent on August 23. The text conversation on August 19 was furthermore an obvious continuation of the discussion the previous day. The same thing happened again on August 23, in reverse, when Mr. Bancroft texted the 4516 number saying “need a ghost number for Toronto to give guys – need two addresses”. Two days later, he texted the 4656 number: “hello, I need them address”. All of this points to a single person using the 4516 and 4656 numbers in the period between August 18 and 23.

[70] The report also shows communications between Mr. Bancroft and Mr. St. Michael during this period. On August 20, they had a phone call lasting three minutes followed by other brief calls immediately after and again on August 22, 2016, at 10:00 a.m. The record of these calls further supports my earlier finding that Mr. Bancroft, rather than Mr. St. Michael, was actively using the Samsung phone and that he used it even on the morning of the robbery.

[71] The extraction report for the Samsung phone did not show any text messages sent or received from it on August 22, 2016. The only communication recorded in the report that day is the 36 second morning phone call to Mr. St. Michael.

[72] There was however other evidence that the Samsung phone was used to communicate with the 4516 number that day. Sylvie Gill, a representative of Rogers, and Rebecca O’Grady, a representative of Telus, testified about information the carriers provided to police in response to production orders for cell phone tower records for towers in the vicinity of the Carron home between 4:15 p.m. and 4:33 p.m. on August 22, 2016. Ms. Gill also gave evidence about responses to orders for disclosure of subscriber information.

[73] Based on the Telus records, a telephone call handled by the towers nearest to the Carron home was placed from the Samsung number to the 4516 number at 4:29 p.m. on August 22. This call lasted 12 seconds. Based on the Rogers records, five text messages were also sent or received by the 4516 number in the fifteen minutes before this call, using the nearby towers. Rogers did not have any record of the content of the text messages, nor do we know with whom they were exchanged.

[74] The towers for which these records were provided were geographically the closest to the Carron home. Neither Ms. Gill nor Ms. O’Grady provided an opinion as to why a particular cellphone communication would be handled by one tower as opposed to the other or by another tower altogether.

[75] Based on the Rogers and Telus records, the 5268 number was listed to a Mr. Forest at a Kanata address, while the subscribers of the 4516 and 4656 were Romone Sinclair and Jay Lyttles at addresses in Toronto and Scarborough, respectively. This subscriber name could be fake since Ms. Gill and Ms. O’Grady testified that neither Rogers nor Telus verify the accuracy of information provided for prepaid accounts.

[76] In summary, the cellphone evidence establishes that:

• In August 2016, Mr. Bancroft was the primary user of the Samsung phone with the 5268 number and the person using it to send text messages between August 18 and 23, 2016. He also used it to phone Mr. St. Michael on August 20 and 22.

• In the contact list on the Samsung phone, Mr. Bancroft had saved the 4656 number under the contact names “AA Konvic” and “Convic”, and the 4516 number under the contact name “convict friend”.

• Mr. Johnson was using the 4656 number up until at least early August 2016. The 4516 number was associated with a subscriber in Toronto, but the subscriber’s name and address may have been false.

• On August 18, 2016, Mr. Bancroft exchanged texts with the 4656 number regarding plans for travel to Ottawa. The person texting Mr. Bancroft referred to himself as “Konvic”. The discussion between this same person and Mr. Bancroft continued over the next three days after Konvic switched to the 4516 number.

• Mr. Bancroft made arrangements for Konvic and his companion to get a rideshare from Toronto to Ottawa on August 21.

• A very short phone call was placed from the Samsung phone to the 4516 number at 4:29 p.m. on August 22 and was handled by cellphone towers in the vicinity of the Carron house.

• The 4516 number received and sent five text messages handled by towers in the vicinity of the Carron house between 4:15 and 4:33 p.m. on August 22 to a phone other than the Samsung phone.

Has the Crown proved the charges against Mr. Johnson?

[77] No fingerprints or any other physical evidence that would help identify the robbers was found in the house, or on the van or the bracelet found in the van. Mr. St. Michael was introduced to them only as Convict and Juice. The case against Mr. Johnson therefore hinges on the cellphone evidence and the evidence of Mrs. Carron and Mr. St. Michael about the shorter robber.

[78] Mr. Bancroft made arrangements for someone nicknamed Konvic to travel to Ottawa on August 21, 2016. They exchanged texts using the same phone number that Mr. Johnson had given to his probation officer. Further text messages and phone calls were exchanged beginning August 19 between Mr. Bancroft and Konvic using the 4516 number. The cellphone tower records place this same user in the vicinity of the Carron house at the time of the robbery.

[79] All of this corroborates Mr. St. Michael’s account of the lead-up to the robbery. It is also consistent with Mr. Johnson being both Konvic/Convict. There is, however, a gap in the evidence. We do not know whether Mr. Johnson was the only person who used the phones with the 4656 number and the 4516 number in August 2016. The Crown could overcome this with compelling evidence that Mr. Johnson matches the descriptions provided by Mrs. Carron and Mr. St. Michael of the shorter robber. Their evidence regarding the shorter robber’s appearance, however, does not support the Crown’s theory.

[80] Mrs. Carron testified that both robbers were Black. The shorter robber was stockier than the taller robber and had lighter skin. She recalled that he was not much taller than 5’3” (her own height), was clean-shaven and did not have an accent. Mrs. Carron was not able to describe any identifying traits or physical features, such as tattoos or blemishes, that would help to identify either robber. She said that she was scared and sick during the robbery and tried to avoid looking directly at them. She did however recall one distinctive thing about the shorter robber: he had very short dreadlocks sticking out two or three inches from his head, and he appeared to be biracial.

[81] I have already concluded that Mrs. Carron was a highly credible witness. Despite the stress of being held at gunpoint during the August 2016 robbery, she gave a detailed report to police about what happened consistent with the physical evidence they recorded during their investigation. She specifically recalled the shorter robber’s distinctive hairstyle and biracial appearance. The Crown argued that Mrs. Carron did not necessarily understand the difference between dreadlocks and braids. Based on her evidence, I think she did.

[82] We do not have a photo of Mr. Johnson in August 2016. We do however have evidence of how he looked in the months before and after the robbery. In booking photos taken in March 2016, April 2017 and December 2017, Mr. Johnson had short hair in the front and cornrows or skinny braids gathered up at the back of his neck. He wore the same hairstyle at trial in 2021. He did not have dreadlocks in any of these photos. Although Mr. Johnson’s hairstyle could have changed in the sixteen months after the robbery, the photos do not suggest that his look has in fact varied much over the past five years.

[83] The Crown concedes that Mrs. Carron did not identify Mr. Johnson at the May 5, 2017 photo lineup. She told police that it was “possible” that he was the shorter robber, based on his overall appearance, the shape of his face and tone of his skin. She noted the differences between the shorter robber’s hair and Mr. Johnson’s hair. It was also during the lineup that Mrs. Carron told police that she thought the shorter robber might be of mixed race, and that perhaps one of his parents was white. She described the shorter robber as not “true Black”.

[84] At trial, Mrs. Carron clarified that, at the lineup, she was only 50 percent sure that Mr. Johnson’s photo was the image of the shorter robber. Even if he had been wearing dreadlocks, she said she would only be 75 percent sure of the identification. She agreed that Mr. Johnson, whom she could see on screen as he attended the trial remotely, is Black.

[85] If, therefore, I accept Mrs. Carron’s identification evidence as reliable, there is reasonable doubt about whether Konvic/Convict is Mr. Johnson.

[86] I turn then to Mr. St. Michael’s evidence. He spent hours with Convict on August 21 and 22, 2016. He also saw him again at least twice afterwards. According to Mr. St. Michael, Convict spoke with a slight Jamaican accent, and had a light beard or moustache on August 22, 2016. He also had very long dreadlocks. There is again the possibility, theoretically, that Mr. St. Michael is confused about the difference between dreadlocks, cornrows and braids. Mr. St. Michael did not, however, identify Mr. Johnson as Convict at the August 2017 photo lineup. He looked at his photo for over 30 seconds and then said that “it could be him”. When a police officer suggested he had to give a yes or no answer, he said “I’m gonna say yes”. This does not amount to a positive identification: see R. v. Dorsey (2003), 2003 26504 (ON CA), 173 C.C.C. (3d) 443 (Ont. C.A.), at para. 10; R. v. Osborne, 2012 ONSC 4287, at para. 54, 58; and R. v. Vigneswaran, 2011 ONCJ 170, 270 C.C.C. (3d) 399, at paras. 19, 20, 28.

[87] I furthermore cannot accept the accuracy of Mr. St. Michael’s description of Convict without corroboration. Ms. Kwok’s evidence about Mr. Johnson’s appearance was vague. The only other evidence about Mr. Johnson’s appearance comes from his booking photos and Mrs. Carron. Mrs. Carron’s description of the shorter robber’s hairstyle, hair length and accent do not match Mr. St. Michael’s description of Convict. Neither do the photos. Mr. St. Michael furthermore testified that Convict’s hairstyle did not change in the months after August 22, 2016. This undermines any theory that Mr. Johnson changed his look dramatically for the purpose of the Carron robbery.

[88] On the evidence as a whole, I cannot rule out the possibility that the shorter robber, aka Convict or Konvic, was someone other than Mr. Johnson. I therefore conclude that the Crown has not proved beyond a reasonable doubt that Mr. Johnson committed the Carron robbery and the other offences with which he is charged.

Has the Crown proved the charges against Mr. Bancroft?

[89] The Crown’s case against Mr. Bancroft depends almost entirely on Mr. St. Michael’s evidence. There was no physical evidence tying Mr. Bancroft to the Carron robbery and no eyewitness placing him near the scene of the crime. I have already concluded that Mr. St. Michael’s evidence cannot be accepted if it is uncorroborated. The question I must therefore consider is whether circumstantial evidence called by the Crown is capable of restoring my faith in relevant aspects of his account: see Khela, at para. 43. I must, in particular, be persuaded that Mr. St. Michael was telling the truth when he testified about Mr. Bancroft’s participation in the Carron robbery on August 22, 2016.

[90] I have already found that Mr. Bancroft made arrangements, using the Samsung phone, for the individuals known as Convict and Juice to travel to Ottawa on August 21, 2016. I do not need to rule on the admissibility of Mr. St. Michael’s evidence under the co-conspirator’s exception, because I have found, on the basis of other evidence, that Mr. Bancroft habitually used that phone and that he was sending and receiving messages as “big guy”. Mr. Bancroft even used the phone on the morning of the robbery to phone Mr. St. Michael. Based on Mr. Couvieau’s evidence, Mr. Bancroft was driving around White Lake with Mr. St. Michael and two Black men two or three days before the robbery. The cellphone tower evidence corroborates Mr. St. Michael’s evidence about communications between Convict and the Samsung phone during the robbery, although he recalled texting as opposed to a phone call. The minivan evidence supports his account of picking up the robbers up near the Costco parking lot after they ditched the van there. His evidence about Juice holding the gun is consistent with Mrs. Carron’s evidence that the gun was held by the taller robber.

[91] Beyond these points, however, there is little or no evidence that confirms Mr. St. Michael’s account of Mr. Bancroft’s activities on the day of the robbery.

[92] The evidence from the motel does not link Mr. Bancroft to the robbery. Based on the motel’s records, it was Mr. St. Michael who paid for the room.

[93] Steve Couvieau’s testimony that he saw Mr. Bancroft and Mr. St. Michael in the company of two Black men in his truck before the robbery does not prove that Mr. Bancroft was in the truck when Convict and Juice were driven to Upper Dwyer Hill Road around 4:00 p.m. on August 22.

[94] The cellphone tower evidence does not support Mr. St. Michael’s testimony that Mr. Bancroft was texting Convict during the robbery. The tower evidence is consistent with Mrs. Carron’s recollection of a short phone call involving the shorter robber, but this does not prove that it was Mr. Bancroft who was on the other end of the line. Mr. Bancroft used the Samsung phone on the morning of August 22. Mr. St. Michael acknowledged, however, that he sometimes used both Mr. Bancroft’s phone and his truck.

[95] There is no evidence linking Mr. Bancroft to the Remington that Mr. St. Michael eventually turned over to the police. There is, in fact, no evidence corroborating Mr. St. Michael’s assertion that the Remington was the gun used during the robbery. Although Mrs. Carron described the gun held by the taller robber in some detail, she did not identify the Remington as that gun. According to her, the police had never even shown her the Remington to see if it matched her recollection of a long gun with a big barrel and a white spot near the end.

[96] I accordingly conclude that the Crown has not been able to prove, beyond a reasonable doubt, that Mr. Bancroft had the role in the Carron robbery described by Mr. St. Michael, and hence is guilty of the offences with which he is charged.

Disposition

[97] I find Mr. Johnson and Mr. Bancroft not guilty on all counts of the indictment.

Justice Sally Gomery

Released: September 28, 2021

COURT FILE NO.: 17-R2037 DATE: 2021/09/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JAHMYLE JOHNSON and KYLE BANCROFT Applicants

VERDICT

Justice Sally Gomery

Released: September 28, 2021