RELEASED: 20210126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAHMYLE JOHNSON
Defendant
Mary Anne Alexander and Kristin Smyth, for the Crown
Alison Craig, for the Defendant
HEARD: March 9, 11, 12, 16, 23, June 2, December 7-11, 15 & 30, 2020
REASONS FOR DECISION
VALLEE J.
Introduction
1Hal Hake owns a jewellery business in Barrie. In April 2017, he resided at 25 Gunn Street, Barrie with his stepdaughter, Madelyn Garvey. The house is a side-split. On April 10, 2017, at approximately 10:30 a.m., two robbers entered his house to steal jewellery. One was wearing a mask and holding a gun. The other was not wearing a mask and had no weapon. They found Mr. Hake in his bedroom. The masked robber asked Mr. Hake, “Where’s the jewellery?” Mr. Hake shouted to Ms. Garvey, who was in her bedroom, “Call 911”. A struggle ensued between Mr. Hake and the masked robber. The unmasked robber entered Ms. Garvey’s room, told her to get down on the floor and took her phone. The struggle between Mr. Hake and the masked robber continued into the hallway, into Ms. Garvey’s room and back out into the hallway to the top of the stairs. Mr. Hake pushed the robbers down the flight of stairs to the foyer. The unmasked man went first followed by the masked man. The unmasked robber fled from the house. When the masked robber reached the foyer, he turned and shot Mr. Hake in the abdomen and then fled. At 10:34 a.m. Ms. Garvey called 911 using Mr. Hake’s cell phone. Police and emergency services arrived.1
2The police found a spent bullet casing and the butt end of a marijuana roach in the foyer. The roach was sent for forensic testing. Mr. Johnson’s DNA was on it as well as incomplete DNA from another person.
3Mr. Johnson, who is alleged to be the unmasked robber, is accused of six offences:
a. break and enter,
b. aggravated assault,
c. discharging a restricted or prohibited firearm with intent to wound, maim or disfigure or endanger the life of Hal Hake or to prevent the arrest or detention of any person,
d. possessing a restricted or prohibited firearm without a licence or registration certificate,
e. robbing Madelyn Garvey while using a restricted or prohibited firearm; and,
f. robbing Hal Hake while using a restricted or prohibited firearm.
4The issue in this trial is identity. The evidence is circumstantial.
Agreed Facts
5Several agreed statements of facts were filed during the trial. The parties agreed on the following:
a. Madelyn Garvey called 911 at 10:43 a.m.
b. The defendant’s DNA was on the marijuana joint. It also contained another person’s DNA which was insufficient to analyze.
c. A prohibited firearm was used to shoot Hal Hake. The defendant did not have a licence to possess a prohibited firearm.
d. Ms. Garvey reviewed two photo arrays on April 28, 2017 and May 25, 2017. The defendant’s photo, number four, was included in the May 25, 2017 array but was not included in the April 28, 2017 array. Ms. Garvey identified the defendant in court on February 6, 2018 and January 3, 2019
e. Barrie City Police found Ms. Garvey’s phone on April 11, 2017 at 3:10 a.m. approximately three meters off the paved portion of Highway 400 southbound between Mapleview Drive and McKay Road.
f. On November 8, 2017, the defendant pleaded guilty and acknowledged playing a role in the robbery of the Canna Clinic Dispensary in Toronto
g. According to the Freedom Mobile Records, the device associated with phone number 289-990-0313 was in Barrie, Ontario on the following dates and only these dates:
i. April 9, 2017 at the times testified to by Gord Kent,
ii. April 10, 2017 at the times testified to by Gord Kent, and
iii. in the late evening of February 16, 2017 into the early morning of February 17, 2017.
h. On April 27, 2017, Mr. Johnson was noted to be about 192 pounds.
i. Mr. Johnson is 5 feet 5 inches tall.
Evidence of Hal Hake
6Mr. Hake testified that he owns a jewellery store in Barrie. In April 2017, his residential address was 25 Gunn Street, Barrie. It had a foyer that is like a hall and goes from the front to the back of the house. On the left side is the door to the garage. On the right side near the front door is a closet. Past that is a staircase. Several stairs go from the foyer up to the living room, kitchen and bedrooms. From the foyer, several stairs go down to a recreation room.
7Mr. Hake testified that he was not working on April 10, 2017. That morning, around 10:20, he was lying on his bed playing video games. His step-daughter Madelyn Garvey, was in her room sleeping. Mr. Hake stated that he heard the front door open. He thought perhaps his wife was returning home. He got up and went to his closet to put on his bathrobe. The closet is near the door into the bedroom. When he turned around, he saw a masked man2 standing in front of him with a small, silver handgun in his right hand. His hand covered most of it.
8Mr. Hake testified that the masked man was approximately 5’11”. He was taller than Mr. Hake. He was wearing a balaclava type mask with holes cut out for his eyes and mouth. The masked man said to him immediately, “Where’s the jewellery?” Mr. Hake testified that he told him to get out and might have said, “There’s no jewellery here.” Mr. Hake stated that he knew he was in trouble. He yelled for Mady to call 911. Mr. Hake stated that he started shoving the masked man at which point he saw another man, who was not wearing a mask, standing in the hallway behind the masked man. Then the unmasked man went into Mady’s room.
9Mr. Hake stated that he tried to fight his way through both men to get the unmasked man out of Mady’s room and to prevent the masked man from going into her room. The unmasked man was on Mady’s bed and had taken her phone. Mr. Hake stated that he tried to pull him off the bed. At some point, the masked man hit Mr. Hake on his left temple with the gun.
10Mr. Hake testified that he grappled with both men. They moved down the hallway. They were scuffling. Mr. Hake was throwing as many punches as he could. He stated that the men seemed to want to get out of the house. He tried to pull up the first man’s mask but only got it up his cheek. There were no distinguishing marks. He could not see any expression on the masked man’s face. Mr. Hake stated that he had no idea who this man was. He described him as young, perhaps in his 20s, African American and wearing baggy clothing including a hoodie. Mr. Hake believed that the hood was up and covered his entire head but he was not certain. Mr. Hake described the unmasked man as shorter, 5’6” to 5’9”, and stockier than the masked man. Mr. Hake did not see him with a weapon. He did not notice anything in particular about the unmasked man.
11Mr. Hake stated that they scuffled down the hallway to the living room and the top of the stairs. Mr. Hake pushed both of them down the stairs. He did not see the gun when they were going down the stairs. He thought the masked man had put the gun in a pocket. The unmasked man went down the stairs first followed by the masked man. Neither of them fell or lost their footing. When they got to the foyer, the unmasked man went toward the front door. Mr. Hake described him as in full retreat. Mr. Hake lost sight of him when he turned left at the bottom of the stairs. When the masked man reached the bottom of the stairs, he turned around and shot Mr. Hake in the abdomen. Then he left. Mr. Hake stated that it happened within seconds. Mr. Hake testified that the men took Mady’s phone and his car keys which he believes were on a table in the hall.
12Mr. Hake stated that he grabbed his stomach and went down the stairs. He said the men flew out the door. He went out the door but could not see them or hear anything. There was no additional vehicle nearby. Mady was screaming because he had been shot. He yelled for her to get his cell phone and call 911.
13Although Mr. Hake’s recollection was that the masked man pointed the gun at the floor when he entered the bedroom, Mr. Hake gave a statement to the police on April 12, 2017 and stated that the gun was pointed at him. He agreed that his recollection would have been better then. Now, he does not recall that the gun was pointed at him.
14Mr. Hake stated that he did not smell marijuana or see anyone smoking it. He did not see anyone holding a marijuana roach.
Evidence of Madelyn Garvey
15Madelyn Garvey stated that on the morning of April 10, 2017, she was sleeping in her bedroom and woke up to a lot of noise in the hall. She heard her stepfather Hal say, “Mady call 911.” Her phone was on her bed, under her pillows and plugged into the wall. She was sitting on the edge of her bed. She recalled hearing someone, not Hal, say, “I’m going to shoot you.”
16Then, a man entered her room and told her to get down on the ground, which she did. She stated that she did not want to get hurt. He hovered over her and kept telling her to stay down. Hal and another man entered her room. They were fighting. The other man was holding a gun. Ms. Garvey stated that she reached for her phone and got it but the first man reached over her and took it from her. The cord pulled out of the wall and was still attached to the phone when the he took it.3
17Hal was trying to get the masked man out of her room. Ms. Garvey stated that she saw the gun in his hand. She described it as a tiny silver gun, perhaps 5 to 6 inches long. She had no trouble seeing it. He was pointing it up in the air and flailing. Hal was trying to control his arms. They were struggling physically. The unmasked man watched Hal and the masked man struggle.
18Ms. Garvey stated that the unmasked man was wearing a hoodie. Nothing was covering his face. She believed that the hood was up on his head. He was not Caucasian. His skin was a dark colour, either brown or a light black. He had a scruff of short facial hair and some acne type scars on his face that were darker spots. He was shorter than Hal, perhaps by an inch or two. He was heavier than the masked man. Ms. Garvey stated that she did not recall seeing his hair.
19Ms. Garvey recalled that she was asked about his hair in her interview with the police the next day, on April 11, 2017. She read the interview transcript to refresh her memory. At pages 46 and 47, she stated that she did see the unmasked man’s hair. It was dark and short. She could see his whole face. She did not recall his eye colour.
20Ms. Garvey stated that she saw the masked man when she was on the ground. She recalled seeing his side and could have seen his back as well. He was wearing a black mask. She could not see any part of his face. He was wearing dark clothing. She saw his hand. He had the same skin colour as the unmasked man. He was close in height to Hal or perhaps an inch or two taller. He was skinnier than the first man. She was paying most of her attention to the unmasked man because he was right beside her. Within a few seconds, the men and Hal were out of her room, going down the hall. Ms. Garvey stated that within a couple more seconds, she heard a gunshot, walked out of her room and saw Hal. The two other men were no longer in the house. She went to look for Hal’s phone, found it and called 911.
21Based on an agreed statement of fact, Ms. Garvey’s call to 911 was just over six minutes long. At times, she spoke about the skin color of the perpetrators. The following is part of the 911 call:
Call Taker (CT)
Madelyn Garvey (MG)
CT – what’s happened to him
MG – he got shot
CT – by who
MG – by two black men come into my house
CT – right now this just happened
MG – Yes two black guys they took my phone they were inside my house
And later on,
CT – can you tell me about the shorter one’s clothes then
MG – he almost looked Mexican I want to say, I don’t know he was a little bit shorter, I’m not sure.
22Ms. Garvey stated that she was in the foyer when the police arrived. Hal was either on the main floor at the top of the stairs or in his bedroom. Once the police arrived, she went back to her bedroom, put clothes on and sat at the kitchen table with an officer to give him a description of the men. Hal went to the hospital by ambulance.
23Based on another agreed statement of fact, Madelyn Garvey gave a statement to police on April 11, 2017. At times she spoke about the skin color of the perpetrators. The following is part of her recorded statement regarding the unmasked man who came into her room:
Officer Justin Fry (JF)
Madelyn Garvey (MG)
JF: so he opens the door
MG: yeah
JF: and comes in your room
MG: yeah
JF: Male black?
MG: I thought he looked Mexican but I honestly saw his face for not very long. Like I don't – I was waking up, right.
JF: Yeah.
MG: Like I didn't - I wasn't like picking out things that I could notice about him.
JF: No, and believe me, I appreciate what you're saying.
MG: Yeah.
JF: But if you tried to, to think back, just is he – does he appear to be Mexican or does he appear....
MG: Darker, darker skin I guess I should say.
JF: Okay.
24Ms. Garvey testified at the preliminary hearing regarding this matter on January 3, 2019. At times she spoke about the skin color of the perpetrators. According to an agreed statement of fact, the following is part of her testimony regarding the unmasked man who came into her room:
Q: So if we started with the guy who was in your room first and who takes your phone, okay, we’ll call him number one for you; ok:
A: yes
Q: tell me what you remember – it’s a man
A: mm-hmm
Q: you’ve told us that
A: yes
Q: what color was his skin
A: dark
Q: like black or something different
A: Dark. Dark skinned.
Q: so not white like you
A: yes
And later on,
Q: all right. And you described him to the police as Mexican, so is that what you meant by darker skin?
A: that’s what I was trying to refer to yes
25Ms. Garvey stated that she met with the police of couple of times in the next few months. At one meeting, a police officer produced a sketch of the first man. She stated that she has seen the sketch.
26On April 28, 2017, Ms. Garvey attended at the police station to go through a photo lineup. She stated that she recognized some of the features of one of the men in a photo but could not say for certain that he was the man who came into her bedroom.4 Ms. Garvey also attended on May 25, 2017 to go through a second photo lineup. Again, she stated that she recognized some of the facial features on one of the photos but could not be sure that the man in the photo was the man who came into her bedroom.5 When asked whether she saw any identifying marks such as scars or tattoos, she stated – acne scars, just a few.
27Ms. Garvey stated that she recognized the defendant as the man who came into her bedroom. She had seen him in court after the shooting. She stated that his nose as well as his facial hair are very similar to what she recalls.
28Ms. Garvey agreed that when the unmasked man came into her bedroom, she had just woken up. She was in a bit of an early morning fog. The entire incident happened very quickly. She stated that she did not smell any marijuana nor did she see either man holding a roach.
29In her testimony, Ms. Garvey said that she did not recall the unmasked man’s hair and then agreed that her memory would be refreshed by reviewing her police statement. In her statement, she said it was short. She agreed that she could now not recall whether it was short. She agreed with what she had told the police because she believed it was more relevant than what she recalls now. During the trial, she could not describe the style of the unmasked man’s hair. She stated that he was likely not wearing a hat. She had a few seconds to look at his face. She stated that she recalled his facial hair and she remembered his nose. His facial hair was shorter and scruffy. She stated that he had a bit of a bigger nose. At the preliminary inquiry, she was asked whether anything stood out about his face and answered no. When she was asked why she would remember something later at trial, she stated that at the preliminary inquiry she was nervous and did not want to say anything wrong. She also allowed that she might remember something now because she has been looking at photos.
30When Ms. Garvey initially spoke to the police, she said that the unmasked man appeared to be Mexican. She stated that she was very distraught and was trying to come up with a way to describe him. She stated that her mind was not working very well. He was black. She agreed that perhaps the reason why her description of the man has changed is because she has seen the defendant in court. When she saw him in court previously, she knew that he was the person who had been charged with robbery at her house.
31Ms. Garvey stated that the unmasked man never had a weapon. He was a not particularly forceful. He was not uttering threats. She told the police that he looked scared. He looked caught off guard when he saw her. He seemed surprised by something that was going on. He was just standing there in her bedroom, not intervening between Hal and the other man.
Evidence of Police Officer Jim Peters
32Police Officer Jim Peters, of Barrie City Police, was the first officer to arrive at the scene. He arrived at 10:45. He first saw a male and female at the front of the house. The male was wearing a robe and appeared to be shot in the stomach on the right side. The female was crying. Officer Peters testified that he directed them back inside the house because the male required first-aid. They went inside to the living room. Officer Peters provided first-aid for the gunshot wound
33Officer Peters stated that he was given a description of the suspects. They had fled. He understood that they took Mr. Hakes’ cell phone. Mr. Hake was taken to the hospital by ambulance. After he left, Officer Peters assisted with scene security.
Evidence of Police Officer Kevin Barkley
34Officer Barkley, of Barrie City Police, stated that he arrived at the scene at 10:46 a.m. He entered the residence and saw a small caliber brass casing lying on the foyer floor near the stairs. He stated that he learned from a party at the scene that a small silver handgun had been used during the robbery. He also saw a small marijuana roach near the casing. He asked Madelyn Garvey whether anyone else was in the house. Then he went outside to direct the emergency service vehicles as they were arriving. Fire and ambulance arrived shortly. He then stood outside waiting for the forensics officers who arrived at 12:16.
35Officer Barkley stated that he provided them with an update about what had occurred, namely that there had been a single gunshot wound. He told them where the casing and the roach were located. He went back into the house with the detectives to give them a walk around.
36Once Mr. Hake had left by ambulance, Officer Barkley remained at the scene to control the front entry to the house.
Evidence of Police Officer Jason Nicolle
37Police Officer Nicolle explained that he is an identification officer. His duties and responsibilities include taking photographs of a scene, collecting video, looking for fingerprints, footprints, tire impressions, and collecting physical evidence.
38He arrived at the scene at 11:53 a.m. with his partner, Officer Shaun Denomme. Two officers, Barkley and Peters were at the scene providing security. He and Officer Denomme did a walk-through with the other two officers. Officer Nicolle stated that he entered through the front door. He noted that the foyer was a clean tile floor. There was no sign of forced entry. He saw a shell casing on the foyer floor next to the garage door and the remnant of marijuana roach in the same area closer to the stairs. After the walk-through, Officer Denomme took photographs of the scene. He seized the casing and the marijuana roach. Officer Nicolle stated that he was next to Officer Denomme when he seized the two items.
Evidence of Cameron Pottage Regarding Sky 5.5 Cell Phone, Numbers 289 990 0313 and 226 974 0845
39Mr. Pottage explained that he worked for York Region as a police officer for approximately 10 years. He is now employed by Barrie City Police as a civilian member and special constable. He works in the technical crimes unit as a computer and cell phone forensic examiner. He examines them to recover evidence.
40Mr. Pottage testified that in this case, he did not do the extraction and generate the report from the cell phone in issue. The extraction had already been carried out by Police Officer Down in Owen Sound on May 11, 2017. The universal forensic extraction device (UFED) version he used was 6.1.6.19. Mr. Pottage stated that he received a 2,500 page copy of the extraction report. A second extraction was carried out by Police Officer Frith in Barrie on February 14, 2018. She used a different UFED Version, 6.5.0.232, which was newer than the one used by Officer Down. The newer version was able to extract certain information, including Facebook Messenger, which could not be obtained using the older version. Officer Frith’s report is much shorter than Officer Down’s report.
41Mr. Pottage testified that an extraction does not remove the information from the phone. Rather, it copies the information. Different types of extractions can be done. The best is called a physical extraction because it copies all of the information on the phone, in other words, the full memory. Another type is called a logical extraction in which the officer can request specific types of information. In this matter, Police Officer Down carried out a logical extraction. His report shows “Web History” being items searched on the internet, applications installed, text messages sent and received, photographs, and videos, among other things. Officer Frith’s extraction includes Facebook messages sent and received and information about the user account, among other things.
42Mr. Pottage explained that a cell phone must have a subscriber identity module (known as a SIM card), in order to connect to a network. A SIM card generally has a phone number attached to it.
43The first page of the extraction report lists device information related to the phone from which the other information was extracted. For example, it shows the International Mobile Subscriber Identity number (IMSI). This goes with the SIM card. It is the subscriber’s identity number and is unique to the SIM card. The International Mobile Equipment Identifier (IMEI) is stated. This number is usually embossed on the phone. It is a number that is unique to the phone and is independent of a SIM card. The Mobile Station International Subscriber Directory Number (MSISDN) is 1 226 974 0845. It is the phone number associated with the SIM card.
44All extracted items have a timestamp. The 24 hour clock is used based on Greenwhich Mean Time so that time stamps (Co-ordinated Universal Time - UTCs) are consistent internationally. One must subtract either five hours (if Ontario is using standard time) or four (if Ontario is using daylight savings time) from the UTC number to obtain the time in Ontario when an activity was carried out on the phone.
45The Chats/Facebook/Facebook Messenger section of Officer Frith’s report shows participant number 50147792 and the owner’s name, Konvic Lyttles. In his testimony, Mr. Johnson confirmed that he used that name. On March 12, 26 and 31, 2017, Mr. Johnson confirmed to three other people that his cell phone number was 289 990 0313.
46Specifically, in a communication with a person identified as Freedom Poole, on March 12, 2017 at 20:15:34 UTC, Freedom Poole asks, “Is that ur number the 289 990?” One second later, Mr. Johnson replies, “That’s my cell number.” Nineteen seconds later, Mr. Johnson replies, “Ya 2899900313”.
47In a communication with a person identified as Chris O’Neill on March 26, 2017 at 21:56:45 UTC, Mr. O’Neill states, “You have a number.” Mr. Johnson responds five seconds later and states, “2899900313”.
48In a communication with a person identified as Kyle Lumber on April 25, 2017 at 05:29:12, Kyle states, “Hello need to talk.” Mr. Johnson replies at 06:56:18, “OK whats up.” At 07:22:21, Kyle states, “Tried calling u your old number ain’t working.” At 8:56:34, Mr. Johnson replies, “I got a new one I’m nor staying in Toronto nomore.”
49In a communication with a person identified as Markel Sutherland on March 31, 2017, at 02:30:36 UTC, Markel askes Mr. Johnson for his phone number. He states, “Text it to me.” Two minutes later, Mr. Johnson sends a text to Markel stating, “2899900313”.
50On April 26, 2017, Mr. Johnson tells two other people that he has a different phone number. Specifically, in a communication with a person identified as Tree Family First, at 10:00:33 UTC, Tree Family First states, “Ur phone”. Mr. Johnson replies immediately, “I have a new link 2269740845.” In a communication with a person identified as Taz Ott, at 16:17:00 UTC, Taz states, “I need work for sure if you have any.” Mr. Johnson replies at 22:29:47 UTC, “2269740845”.
Searched Items
51Mr. Pottage stated that in the “Searched Items” category of Officer Down’s report, line 298 shows that on March 6, 2017 at 18:21:18 UTC, the user of the phone did a chrome search for “Jahmyle Johnson”. Line 297 shows that 27 seconds later, the user did a chrome search for “toronto dispensary”. Line 248 shows that on March 31, 2017 at 01:14:39 UTC, the user did a chrome search for “dispensary toronto”. Line 239 shows that 18 seconds later, the user did a chrome search for “cana clinic robbery”.
52Line 177 shows that on April 14, 2017 at 21:52:39 UTC, the user did a chrome search for “Jahmyle Johnson”. Line 176 shows that five seconds later, the user did a chrome search for “barrie shooting”. Line 151 shows that on the same date, at 23:22:59 UTC, the user did a chrome search for “barrie shooting”. Line 23 shows that on April 24, 2017, at 05:02:38 UTC, the user did a chrome search for “barrie shooting”. Line 17 shows that on the same date, two seconds later, the user did a chrome search for “jahmlye johnson”.
SMS Messages
53In the “SMS Messages” category, line 1773 shows that on April 9, 2017 at 04:57:59 UTC, the phone received a text from 1 289 312 4990 that stated “23 Newton”. Line 1708 shows that on the same day at 14:53:26 UTC, the phone sent a text to Kate at number 613 360 5361 that stated, “What’s your problem dawg”.
54Line 1649 shows that on April 10, 2017 at 08:10:42 UTC, the phone received a message from Kate that stated, “Stop doing drugs :(” Line 1648 shows that on the same day, at 08:55:58 UTC, the phone sent a message to Kate that stated, “Call my phone”. Line 1638 shows that on the same day, at 14:30:20 UTC, the phone received a message from Kate that stated, “Ouuuuu”. Line 1570 shows that on the same day, at 17:34:18 UTC, the phone received a message from Kate that stated, “Hii”.
55Line 1430 shows that on April 11, 2017, at 23:53:42 UTC, the phone sent a message to Kate that stated, “Call me now”.
56Mr. Pottage stated that the section of the report that shows the text messages confirms that the phone number being used was 289 990 0313. There are a number of texts from 289 990 0313 stating that the mailbox is 100% full. This shows that the phone was telling the user that the voicemail mailbox was full.
57Lines 1429, 1428, 1425, 1424, 1423 and 1422 show that on April 12, 2017, between 00:03:43 UTC and 00:52:49 UTC, the phone sent texts to Kate stating that the user was coming to see Kate, that he had arrived and that wanted to be let into the lobby. Line 1420 shows that on the same date at 00:53:19 UTC, Kate sent a text to the phone that stated, “I don’t know who the fuck you think you are and that you think it’s ok to talk to me like that. I’m fucking done.”
58Line 1419 shows that on the same date, at 00:54:26 UTC, the phone sent a message to Kate that stated, “I don’t give a fuck bitch give me my folder so I can cut on everything I love I will smoke you if I don’t get my shit.” Lines 1418 to 1410 show that on the same day, Kate and the user of the phone exchanged texts with Kate stating that she didn’t want to see him and him saying that he “wanted his shit” and that she should throw it off the balcony. Line 1409 shows that on the same day, at 01:32:18 UTC, the phone sent a message to Kate that stated, “I see feds over there goof.” Kate responded at 01:33:17 UTC stating, “Are you dumb hahaha.” She sent a further text at 01:33:34 UTC stating, “Why would I ever rat in my life.” She sent another text at 01:33:37 UTC stating, “I don’t care how much I hate you I wouldn’t.” Then at 01:38:49 UTC, the phone sent a text stating “Just meet the man ivdon’t wanna see you I hate you I tell you I’m in trouble and you leave me downstairs.” Lines 1404 to 1392 show that between 01:39:23 UTC and 02:56:25 UTC, texts were exchanged between Kate and the phone user to the effect that the user had arrived. Kate said “Come here fuck”, the user stated, “My 3 dawgs wanna come in for a sec cool”, Kate replied, “No just you”. The phone user replied, “I don’t trust you if feds come 3 sticks ate better than 1 call my phone I wanna hear your background.”
Web History
59Mr. Pottage explained that the web history section of the report shows the web addresses (URL – uniform resource locator) of the pages visited. Line 1552 shows that on April 14, 2017 at 21:55:46 UTC, the user of the phone queried in Chrome a news article in Barrie Today entitled “New Lead in Gunn Street Shooting”. A copy, printed February 12, 2020, was provided to the court. The date of the article is April 12, 2017. It states that, “Officers spent the day Tuesday searching ditches along Highway 400 near the Walmart plaza off Mapleview. The search team located a cell phone and further forensic examination is required to determine if it is related to the Gunn Street incident.” It goes on to discuss Mr. Hake’s medical condition and the fact that police were looking for two suspects believed to be armed with a gun. It provides a description of the suspects, one being a black male, between 20 – 30 years old, 5’8” to 5’9”, wearing dark clothing and a grey and white striped hoodie. The second is described as a black male, 6’, wearing dark clothing and a dark hoodie. Mr. Pottage stated that one could reasonably conclude that the content of the article would not have changed between the date that the user saw the article and the print date on the hard copy provided to the court.
Images
60Mr. Pottage explained that in the Images section of the report, there are a number of photos shown as thumbnails. They are small copies of the original photos that are created by the operating system. They take up less space and can be transmitted faster. Enlarged photos for those shown on lines 101 created March 30, 2017, 108 created April 1 2017, 112 created April 3, 2017, 117 created April 4, 2017 and 120 created April 10, 2017 were provided to the court. They show Mr. Johnson
Videos
61Mr. Pottage explained that in the videos section of the report, six are listed. The videos described on lines 106 and 110, created March 30, 2017, 109 created April 15, 2017, and 112 created April 8, 2017 were played for the court. They show Mr. Johnson.
The Link to Mr. Johnson
62Mr. Pottage testified that if one was considering the ownership of the phone, one can consider interactions between people and selfie photos taken at the time. If a selfie photo is recovered, there is a high probability that the person in the photo had possession of the phone at the time.
63Mr. Pottage agreed that the reports show that only four calls were made between April 10 and April 22, 2017. The call log data in both reports stops on April 27, 2017. One can reasonably conclude that April 27, 2017 was the date of last call.
Evidence of Gord Kent Regarding Freedom Mobile Cell Tower Data
64Gord Kent is employed by Freedom Mobile as a lawful access investigator and co-ordinator. He responds to requests for information and interceptions. He has attended court many times to assist in interpreting cell tower records and has been qualified as an expert in a number of cases.
65Mr. Kent compiled a report entitled Customer Usage Report With Towers for a 14 month period for the number 289 990 0313. It shows calls, texts and voicemail messages originating from and being received by that number. For each transaction, the records show 10 pieces of information: the date, the originating number, the receiving number, the duration, the event type, the originator cell ID, the receiver cell ID, and the address, sector and specific location for the tower in latitude and longitude. The latitude and longitude can be searched to obtain the location of the tower.6
66Mr. Kent testified that the Freedom Mobile subscriber information for number 289 990 0313 shows Ashley Dayle as the subscriber. The ICCID number, 8914900010038255232, is the unique identifier number for the SIM card. The service type is prepaid. On a prepaid account, Freedom Mobile does not require any proof of identification. Accordingly, Ashley Dayle could be a real or fake name.
67Freedom Mobile first detected the Sky 5.5W cell phone using 289 990 0313 on February 26, 2017. It was last detected on April 14, 2017 at 11:24. Mr. Kent explained that a cell phone constantly emits a signal that indicates its location. If the user wishes to send an email, for example, the phone chooses to use the tower with the best signal strength, which is usually the closest tower to the phone’s location. The range for towers varies from one and a half to two kilometers in an urban area. Along a rural route, the range could be up to 30 kilometers.
68As stated earlier, the Crown and defence agree that the device associated with 289 990 0313 was in Barrie on the following dates and only these dates:
a. In the late evening of February 16, 2017 into the early morning of February 17, 2017;
b. April 9, 2017 at the times testified to by Gord Kent; and,
c. April 10, 2017 at the times testified to by Gord Kent.
April 9, 2017
69Mr. Kent testified that the cell phone pinged off various towers in Barrie on April 9, 2017 between 4:16 p.m. and 6:37 p.m.
April 10, 2017
70Mr. Kent testified that the tower records show that the cell phone had the following activity and pinged off the following tower locations on April 10, 2017:
a. 8:17 a.m. - data usage, tower at 28 Currie Street
b. 9:12 a.m. – sent a text message, tower at 2 Kozlov Street
c. 9:13 a.m. – made a phone call, tower at 2 Kozlov Street
d. 9:14 a.m. – received a phone call, tower at 2 Kozlov Street
e. 9:19 a.m. – received a text message, tower at 2 Kozlov Street
f. 9:30 a.m. – sent a text message, tower at 76 Ross Street
g. 9:42 a.m. – received a phone call, tower at 28 Currie Street
h. 9:52 a.m. – received a phone call, tower at 28 Currie Street
i. 10:00 a.m. – data usage, tower at 2 Kozlov Street
j. 10:01 a.m. – received text message, tower at 2 Kozlov Street
k. 10:10 a.m. – received a phone call, tower at 2 Kozlov Street
l. 10:30 a.m. – received a text message, tower at 28 Currie Street
71I note that at 10:55 a.m. and later, the phone pinged off towers in Innisfil, Holland Landing, North York, Scarborough, Oshawa, Ajax, Whitby and Toronto.
72Under cross-examination, Mr. Kent agreed that the phone pinged off a tower in Innisfil and then 11 minutes later pinged off a tower in North York. Driving from Innisfil to North York would be impossible to do in 11 minutes. The phone pinged off the North York tower because it had a larger radius.
Evidence of Jahmyle Johnson
73Mr. Johnson is 28 years old. He acknowledged that he had been convicted of an armed robbery in Scarborough in 2016. He also pleaded guilty and acknowledged his role in the robbery of a marijuana dispensary known as the Cana Clinic on March 2, 2017. He stated that two other people, Duce and Sleezy were also involved in this robbery.7 Mr. Johnson stated that he had been in jail up to February 10, 2017. He was back in jail by April 27, 2017.
74Mr. Johnson testified that in March and April, 2017, he was selling various drugs including cocaine, crack and heroin in Toronto, Oshawa, Barrie and Owen Sound. Arial, who he occasionally referred to as “my girlfriend” but more often as “my girl”, was working as an escort in Toronto, Barrie and Oshawa. He often drove her to calls. He denied that he was her boss or pimp. He stated that she set up her own dates and he would bring her to them. He had known her since February 2017 when he was released from jail. He did not know her last name nor how to contact her.
75Mr. Johnson testified that in 2017, he had three or four phones. He would change his number every two weeks so that the authorities would have more difficulty wire tapping his phone while he was selling narcotics. For the same reason, he would also get new phones and share phones with others. He would leave phones with other people who were doing his sales. He would also use other people’s phones. He did not recall phone numbers 226 974 0845 or 289 990 0313. He could not say whether either one had been his number in 2017. He did not recall the phone number he was using in April 2017 because he had a lot of phones.
76Under cross-examination, he acknowledged that he did use the Sky 5.5 phone and number 289 990 0313. He stated that he recalled it when he was hearing the evidence during the trial. He used it for conversations with Kate on April 8, 9 and 10. Nobody else would be using it for that purpose. He agreed that six hours before the shooting, he was using it to converse with Kate.
77Mr. Johnson agreed that on April 11, 2017, in the morning, he was conversing with Kate. His texts state that he wanted a “folder” from her residence. The text at 9:30 states, “Just meet the man. I don’t want to see you. I hate you. I tell you I’m in trouble and you leave me downstairs.” Mr. Johnson agreed that he was in trouble for a shooting. He was in Kingston and she wouldn’t let him in.
78He did not deny that he also used number 226 974 0845.
79Regarding 289 990 0313, Mr. Johnson stated that he did not set up the phone account under the name of Ashley Dale. He did not know who set up the account. He did not know how the phone came to him. He stated that cell phones were passed around.
80Mr. Johnson stated that he was in Barrie three to four times a week in March and April, 2017. He was either selling drugs or bringing Arial to calls. He was arrested in Owen Sound on April 27, 2017 for trafficking drugs. He stated that he did not participate in the robbery at 25 Gunn Street. He did not know about it before he was charged with trafficking.
81Regarding his physical appearance in April 2017, Mr. Johnson testified that he had braided hair. The braids were shoulder length. He had some facial hair, a light goatee. He is 5’5” tall. Back then he was overweight. He described himself as fat then. He stated that he never had acne pock marks on his face.
82Mr. Johnson testified that on April 9, 2017, he was in Barrie doing drop offs, dealing drugs and taking Arial to calls. He did not recall the time when he had arrived in Barrie that day. He recalled that he was at the Holiday Inn with Arial, her friend - another working girl, and Duce, who was his friend and helped him sell drugs. He had met Duce in 2015 when they were both in jail. He did not know Duce’s real first name or last name. He could not provide Duce’s address.
83While at the Holiday Inn, Arial did a couple of calls out of a hotel room. He and Duce weighed out drugs, drank and relaxed. He stated that they smoked marijuana, which they shared. He could not recall how long he hung out with Duce. He said he was in and out. He and Arial did not stay overnight. They ran out of drugs so they went back to Toronto to get more. Duce went his own way. Mr. Johnson stated that he did not tell Duce that he would return to Barrie the next day or give him any indication that he would. The time they spent at the Holiday Inn was not a meeting to plan the robbery at Mr. Hake’s house. He had no plans to see Duce in the future.
84Also, on April 9, 2017, Mr. Johnson received a text from 289 312 4990 at 04:57:59 UTC. He could not recall who had this number. The text stated, “23 Newton”. Mr. Johnson did not recognize the address. He stated he thought it was an address for one of Arial’s calls or a drop. He was not surprised to learn that Newton Street is in Barrie and is very close to Gunn Street. According to google maps, the walking time from 25 Gunn Street to 23 Newton is two minutes. He did not believe that he picked up Duce and Sleezy there. It was just a coincidence that he received the address on his phone. On re-examination, when he was shown that if 23 Newton was entered into google maps, it discloses that there is one in three different cities, North York, Brampton and Hamilton, Mr. Johnson stated that the text he received could have been related to one of the other locations.
85Mr. Johnson stated that on April 10, 2017, he arrived back in Barrie but could not recall the time. He was driving a rented Hyundai Sonata. A friend, Deandra had rented it for him to use. He had been driving it for one or two months. Arial was with him. He made a few more drop offs and took Arial to a few calls.
86He was parked on the street waiting for Arial to finish a call. Arial came to the car and said her phone was “lighting up” meaning a number of calls had come in. Mr. Johnson recognized the number as belonging to Duce. Duce called back again on Arial’s phone and told him that “some crazy shit was happening” and that he needed to be picked up right away. Duce said he was at Drew’s house. Drew was a known drug user in Barrie.
87Mr. Johnson stated that he arrived at Drew’s house five or six minutes later. He could not recall the address. He thought it might be in the south end. Duce and another man, Sleezy, ran out of the house, asked him to open the trunk, took off their hooded sweatshirts and put them in the trunk. Mr. Johnson stated that he had known Sleezy since 2017. He did not know his real first name or last name, where he lived, or when he had last been in touch with him.
88Mr. Johnson testified that he was not sure of the time when he picked them up. He immediately drove back to Toronto with Duce and Sleezy, who were slouching in the back seat, because they had to get out of town. They did not say anything in front of Arial. Mr. Johnson stated that when he picked them up, he did not know when the robbery had taken place. When shown that the tower records for the Sky phone show pings at towers in Barrie between 8:17 a.m. and 10:30 a.m. Mr. Johnson agreed that it was possible.
89At some point when they were driving to Toronto, Sleezy threw a cell phone out of the window. Mr. Johnson stated that he did not know at that time who owned the phone. He drove them to Scarborough because Duce lived there. Arial stayed in the car while the men got out. Mr. Johnson stated that he asked Duce about what had happened. Duce stated that they had received information that there were a lot of drugs, jewellery and money at a certain location. They went there to “take care of it” but it became a disaster. A girl was screaming. The man in the house was punching and kicking them. He pushed them down the stairs. Duce stated that before he left, he shot the man. Sleezy was shaking his head and saying that it was “messed up”. Mr. Johnson told Duce and Sleezy that they were hot. He gave them two cell phones, told them to chill out and left them there.
90Mr. Johnson denied that he was sitting outside of 25 Gunn Street when Mr. Hake was shot. He agreed that he just happened to be around to pick up Duce and Sleezy. He had no plans to see Duce that day. It was pure coincidence. Duce called Arial’s phone to reach him for a ride out of town because Mr. Johnson was always with her.
91Mr. Johnson testified that he then went to Oshawa because he had a few drop offs and drug deals. Arial had a few calls including one overnight. He was next back in Barrie a couple of days later.
92Mr. Johnson stated that when he was subsequently arrested in Owen Sound (on April 27, 2017), he had a phone. He could not recall how long it had been in his possession. Others used it as well.
93Mr. Johnson was shown Officer Down’s cell phone extraction report. The report shows that on March 6, 2017, the phone user googled “toronto dispensary’” and separately “Jahmyle Johnson”. In response to a suggestion that he was googling a crime in which he was involved, Mr. Johnson stated, “I can’t say it was me googling. It just says Toronto Dispensary. It doesn’t say a crime.” On March 31, 2017, the user googled “dispensary toronto”, “canna clinic robbery” and “jahmyle johnson”. Mr. Johnson conceded that he probably googled his name but could not say for sure he googled Cana Clinic Robbery but when he was shown that the two searches were 10 seconds apart, he stated that it was possible that he googled the Cana Clinic Robbery.
94Also, on March 31, 2017, the user of the phone googled a Toronto Star article entitled, “Armed robbers make off with cash and marijuana from Riverdale dispensary.” Mr Johnson stated that he was not sure what Riverdale meant. Ten seconds later, the user of the phone googled “jahmyle johnson”. Forty-four seconds later, the user of the phone googled a CP24 mobile news article published April 3, 2015 entitled, “Men charged following violent armed robbery, assault of escort in Scarborough” which stated, “Jahmyle Johnson, 23, is charged with armed robbery, forcible confinement, possession of property obtained by crime and two counts of failing to comply with probation.” In response to a suggestion that he was googling his own crime, Mr. Johnson stated he could not say for certain. It was a possibility but he did not know who had the phone then. He stated that he pleaded guilty to the Scarborough robbery.
95The report shows that on March 29 and 31, 2017, the phone received and sent numerous texts regarding inquiries about escort services and replies. For example, one text sent states, “Outcalls 120hh 200hr I’m available.” Another states, “Hi Hanna. I am looking for a sp…” Mr. Johnson stated that this was Arial. She sometimes used the name Hannah. In the reply, she was letting a client know what she charged for her services. He stated that Arial used his phone quite often.
96The report shows that on April 5, 2017, the phone received a text from a number ending in 0866 which states, “Hey sexy you in Barrie.” Mr. Johnson stated that he did not recall this text. People texted Arial for outcalls on his phone. She did a lot of work in Barrie. The number 289 990 0313 was on the advertisements that she posted on backpages.
97The report shows that the user of the phone sent a text on April 10, 2017 to a number ending 9849 which stated, “Freedom I’m not feeling good can you call me please.” Mr. Johnson explained that Freedom is an older girl, a good friend of his. He stated that he possibly sent this text because he was not feeling good. He could not recall.
98The report shows that the phone received and sent texts from and to someone named Kate, whose number ended in 5361, on April 10, 2017. Mr. Johnson stated that Kate was a girl he talked to at the time. She lived in Kingston then.
99Mr. Johnson testified that he used Facebook. His user name was Konvic Lyttles. He was shown Officer Frith’s download extraction report. He agreed that the report shows that on March 12, 2017, he sent a Facebook message to Freedom Poole that his cell number was 289 990 0313.
100Mr. Johnson agreed that the report shows that on March 26, 2017, he sent a Facebook message to Chris O’Neill that his phone number was 289 990 0313.
101The report shows that on March 31, 2017, he sent Markel Sutherland a Facebook message stating that his number was 289 990 0313.
102The report shows that on March 31 and April 3, 2017, the user of the phone searched “Peterborough Shooting 2016”. Mr. Johnson stated that he was not involved in this crime.
103The report shows that on March 31, 2017, the user of the phone searched jahmyle johnson, Cana Clinic and Toronto Dispensary. Mr. Johnson stated that he pleaded guilty to the robbery at the Cana Clinic. Both Duce and Sleezy were involved.
104The report shows that on April 3, 2017, the user of the phone searched “Brenyon Way shooting”. Mr. Johnson stated that he was not involved in this crime. He was searching it because he lived nearby and liked to know what was going on in the street.
105The report shows that on April 11, 2017, the user of the phone sent a message to a number ending in 7994. It stated, “I’m giving the phone to S.” Mr. Johnson testified that he was giving the phone to someone to use. It could have been a number of people.
106The report shows that on April 14, 2017, the user of the phone googled “jahmyle johnson” at 21:52 UTC and at 21:55 UTC, “New lead in Gunn Street Shooting Barrie Today.com” which was a news article. He also googled “Barrie Shooting” at 21:56 UTC, and again at 23:22 UTC. Mr. Johnson testified that he probably was searching these things. Deandra had told him that if he stayed out of trouble and stayed with her, she would get him the rental car. If he did not come to see her and show her that the car was OK, she would call the rental company and say the car was stolen. He was concerned. He stated that he called her bluff. He agreed that her threat to report the car as stolen was made a few weeks before the shooting.
107Mr. Johnson stated that he was not sure what time he picked up Duce and Sleezy. He did not know whether they were being watched or followed. As they were going down the highway, one of them threw the phone out the window. He stated that someone could have reported this.
108Mr. Johnson stated that he googled his own name and Barrie shooting four days later because he wasn’t sure whether he was being followed down the highway when Sleezy threw the cell phone out the window. He was googling his name to see whether it was on the internet in connection with a stolen car. At the time, he was on probation.
109The report shows that on April 16, 2017, the user of the phone searched a news article regarding a homicide in Huntsville. Mr. Johnson stated that he was not involved in this crime.
110The report shows that on April 17, 2017, the user of the phone accessed a number of backpages in Barrie. Mr. Johnson stated that these were used for escorts to post ads. Arial would have been accessing these pages. When she posted an ad, she would have to include a phone number so that clients could call her. Sometimes Arial worked by herself. He would not be with her.
111Mr. Johnson stated that he googled his name and Barrie shooting again, two weeks after the shooting. He did this because he had not been able to contact Duce and Sleezy. When he had dropped them off in Scarborough, he gave them two phones. He had been calling them but could not reach them. He was wondering whether they had been arrested but he saw that nobody had been. When asked how googling his own name assisted him to know whether Duce and Sleezy had been arrested, he stated that he wasn’t sure whether Deandra had called the police about the car. He was tied to the car. When it was put to him that he never googled stolen car or licence plate. He stated, “I’m doing my own thing in the car. If she reports it is stolen, I could get pulled over at any time.”
112Mr. Johnson denied that he googled Barrie Shooting because he was involved in it. In cross-examination, a suggestion was made that on April 14, 2017, he googled the article “New Lead in Gunn Street Shooting” and his name on the Sky 5.5 phone because he wanted to know if there were any leads. In response, he stated that phones were passed around. He did not know if it was his google search. Then he agreed that he was doing the searches. He said he searched things all the time when he was bored.
113Mr. Johnson stated that he did not know how the marijuana roach with his DNA on it ended up in the hallway of 25 Gunn Street next to the spent bullet casing. He stated that he was smoking some marijuana the day before. He said, “Some guys take them and use them to cut with another one because of the resin.” In answer to the question, “Why would he keep yours for 12 to 14 hours” he said, “I didn’t say it was mine.”
Analysis
Alibi Evidence
114The Crown states that Mr. Johnson’s evidence of where he was at the time of the robbery – parked on a street in Barrie waiting for Arial to finish a call – constitutes alibi evidence. The defence ought to have disclosed this to the Crown so that an investigation could be done. A negative inference could be drawn. The defence disputes that Mr. Johnson’s evidence of his location is alibi evidence.
115I agree with the defence that this is not alibi evidence. In R. v. Tomlinson8, two witnesses testified regarding Mr. Tomlinson’s whereabouts on the evening when the offences occurred. Each one stated that he was absent for approximately an hour. The court set out several principles that govern the defence of alibi. First, in the context of criminal charges, an alibi is a claim that the defendant was elsewhere when the alleged crime took place; therefore, it was impossible for the defendant to have committed the crime. The defence requires precision. Second, the supportive evidence must be dispositive of guilt or innocence. Third, the defence of alibi is subject to the air of reality test. There must be some evidence upon which a properly instructed jury, acting reasonably, could acquit, if the jury believed the evidence to be true.
116There is no evidence of the street name where Mr. Johnson states he was sitting in his parked car. There is cell tower evidence of the neighbourhood where the phone was being used 13 minutes before Ms. Garvey made the 911call. Mr. Johnson’s evidence regarding his location does not preclude him from being one of the robbers. It is not dispositive of guilt or innocence. It was not offered as a defence nor does it have the required air of reality.
Mr. Johnson’s Evidence
117I accept some of Mr. Johnson’s evidence but not all of it. I accept the following:
a. He was a drug dealer. He sold drugs in Barrie and other cities such as Toronto, Oshawa, Barrie and Owen Sound. The cell tower records show that the phone was in these locations on different dates;
b. He was in Barrie selling drugs from time to time.
c. He used Konvic Lyttles as his Facebook name;
d. He googled crimes that he committed as well as those that he did not commit;
e. He googled the shooting at 25 Gunn Street many times, sometimes in conjunction with his own name;
f. He sent Kate a text the day after the shooting. It said, “…I tell you I’m in trouble and you leave me downstairs.” Mr. Johnson admitted that he was in trouble for a shooting.
118I do not accept other aspects of Mr. Johnson’s evidence. He stated that he did not participate in this robbery and did not know of it before he was charged with trafficking; however, he was charged on April 27, 2017. This is directly contradicted by his evidence that Duce told him what happened at 25 Gunn Street on the same day of the robbery, when they arrived in Scarborough and got out of the car.
119Mr. Johnson’s evidence regarding the two phone numbers, 289 990 0313 and 226 974 0845 was contradictory. In examination in chief, he stated that he did not recall the phone numbers. He could not recall the phone number he was using in 2017. In contrast, in cross-examination he acknowledged that he used the Sky 5.5 phone and number 289 990 0313. He stated that he recalled this when he was hearing the evidence during the trial. Mr. Johnson was the last witness to testify. He heard all the evidence before he testified. I have no doubt that 289 990 0313 was Mr. Johnson’s phone number. In March 2017, he sent Facebook messages to Freedom Poole, Chris O’Neill and Markel Sutherland confirming it.
120Mr. Johnson stated that he and Duce did not make any plans on April 9, 2017 to be in Barrie on April 10, 2017. Neither knew that the other would be in Barrie; however, Mr. Johnson testified that when Duce was in Barrie in a desperate situation and needed to get out of town immediately, he called Arial’s phone to ask that Mr. Johnson pick him up. Mr. Johnson stated that it was pure coincidence. He just happened to be around, in Barrie, within a five to six minute drive to the pick-up location. I do not accept this evidence. It defies credulity.
121Mr. Johnson stated that he could not recall Drew’s address but thought it might be in the south end of Barrie. The cell tower records show that on April 10, 2017, between 8:17 a.m. and 10:30 a.m. Mr. Johnson’s phone was pinging off towers in the north end. Mr. Johnson agreed that this was possible. At 10:30 a.m., his phone pinged off a tower that was in the general vicinity of the robbery when it received a text message. As noted above, Ms. Garvey made the 911 call 13 minutes later at 10:43 a.m.
122When asked questions about the various crimes that he googled on the phone, Mr. Johnson was evasive. For example, when it was put to him that he googled his own crimes, specifically the March 6, 2017 Toronto dispensary google, Mr. Johnson stated that it just says Toronto dispensary. It doesn’t say a crime. When it was put to him that on March 31, 2017, he googled dispensary Toronto, canna clinic robbery and jahmyle johnson, he conceded that he probably googled his name but could not say for sure that he googled Cana Clinic robbery. When he was shown that the searches were 10 seconds apart, he stated that he possibly googled the Cana Clinic robbery.
123When it was put to him that on March 31, 2017, he also googled an article entitled “Armed robbers make off with cash and marijuana from Riverdale dispensary/Toronto Star” he stated that he did not know what Riverdale meant. This search was conducted within 10 seconds of a google search of his own name. The article states, “Police were called to the Canna Clinic at Gerrard S. E. and Broadview Ave, just after 10:45 p.m. Thursday.” When it was put to him that he was googling his own crimes because 40 seconds later he googled the news article about the armed robbery in Scarborough, to which he pleaded guilty, Mr. Johnson allowed that it was a possibility but stated that he did not know who had the phone at that time.
124On April 14, 2017, four days after the shooting, the user of the phone googled the news article “New lead in Gunn Street shooting” and “Barrie Shooting” twice in two hours. It was put to him that he did this because he was involved in the shooting and wanted to know whether there were any leads. He stated that phones were passed around. He did not know whether it was his google search. Subsequently, he then agreed that he was doing the searches but his explanation for doing so is not credible. He stated that he was concerned that he might have been followed when Sleezy threw the cell phone out the window. He wanted to see if his name was on the internet in connection with a stolen car because Deandra had threatened to report the rented car that he was driving as having been stolen; however, the threat was made two weeks earlier.
125On March 31, April 3, and April 16, the user of the phone googled “Peterborough Shooting 2016”, “Brenyon Way Shooting” and a news article entitled, “Police Investigate Homicide in Huntsville”. Mr. Johnson stated that he was not involved in these crimes. The defence argued that Mr. Johnson googled many things including these crimes that he did not commit. Nevertheless, his repeated evasiveness about doing the google searches makes his evidence less credible.
126Mr. Johnson googled his name again on April 24, 2017 two weeks after the shooting. He stated that he did this because when he dropped off Duce and Sleezy, he gave them two phones. He had not been able to reach them. He wondered whether they had been arrested. When he was asked how googling his own name assisted him to know whether Duce and Sleezy had been arrested, his answer was evasive. He stated that he did not know whether Deandra had called the police about the car. When it was pointed out to him that he did not google “stolen car” or the licence plate, his answer was unresponsive.
127Mr. Johnson’s evidence does not leave me with a reasonable doubt of his guilt; however, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
Eyewitness Identification
128The court must approach eyewitness identification with caution. It may seem more reliable than it is because it is often given by a credible witness. The observations of honest people can be faulty for a variety of reasons including situational factors, individual beliefs and abilities to perceive.
129The Crown submitted that this court must consider the entirety of the identification process. In R. v. Tat9, the court considered identification evidence and the use of a witness’ prior descriptions and identifications. It stated,
The probative force of identification evidence is best measured by a consideration of the entire identification process…If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given are admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.
130As noted earlier, Mr. Johnson is 5’5” tall. On April 27, 2017, he weighed approximately 192 pounds. He testified that he was fat then and had braided hair, similar to its appearance at trial.
131Mr. Hake presented as a credible witness. He provided some eyewitness testimony. He stated that he is 5’11” tall. The unmasked man was shorter and stockier, approximately 5’6” to 5’9” tall. Mr. Hake did not observe anything specific about the unmasked man’s face because he was focused on fighting with the masked man. He stated that the unmasked man was wearing a hood.
132Ms. Garvey also presented as a credible witness. She saw the unmasked man from a close distance and was paying more attention to his face because he was in her room close to her. She saw the unmasked man for only a very short time. She stated that he was wearing a hoodie with the hood up. His skin was a dark colour, either brown or black. He had a scruff of facial hair and some acne-type scars on his face that were darker spots. Under cross-examination, when she was asked whether she saw any identifying marks such as scars or tattoo, she stated, “Just acne scars, just a few.”
133The photo of Mr. Johnson in the second array is not the best. There are bright areas on his face, perhaps because of the lighting. The photo shows some dark spots on his face and forehead that could be indented. It is difficult to say whether they are and whether they might have been caused by acne. Ms. Garvey’s description of a few acne scars, darker spots, is not inconsistent with Mr. Johnson’s photo in the array.
134In her testimony, Ms. Garvey initially stated that she did not recall seeing the unmasked man’s hair; however, in the statement that she gave to the police the day after the incident, she said that she did see his hair. It was dark and short. In Mr. Johnson’s array photo, he appears to have short, dark hair. There is one braid sticking out sideways to the left. If the unmasked man’s hood was up when he was in Ms. Garvey’s room, she likely would not have been able to see the length of his hair.
135Much has been made of the fact that several times, Ms. Garvey referred to the unmasked man as looking “almost Mexican”. She said this to the 911 call taker but earlier in the call she stated twice that two black men came into the house. The next day, in her statement to the police, she explained that when she said Mexican, she meant darker skinned. At the preliminary inquiry, she gave the same explanation for using the word Mexican.
136Ms. Garvey stated that she remembered the man’s nose. She said he had a “bit of a bigger nose”. She could not identify the unmasked man in either photo line up. She recognized some features on the photo of a man who was not Mr. Johnson and some on a photo of a man who was Mr. Johnson; however, she could not identify him as the unmasked man. When she was shown the photo of Mr. Johnson, she testified that she thought she recognized him but she could not say for sure. She said the nose stood out for her as well as the acne scars and the shape of his face.
137Ms. Garvey made an in-dock identification. Under cross-examination, she candidly agreed that perhaps the reason why her description of the unmasked man changed was because she had seen Mr. Johnson in court and knew that he had been charged with the offences.
138The evidence of Mr. Hake and Ms. Garvey regarding the physical features of the unmasked man may be summarized as follows: he was stocky, approximately 5’6” to 5’9” tall, black, had a bigger nose, short dark hair, a scruff of facial hair and a few acne scars, spots.
139Although a “bigger nose” is a subjective observation and not particularly identifying, the balance is an appropriate general description of Mr. Johnson if he was wearing a hood; however, a number of people would fit this description. The photo of him in the array does not show anything particularly distinctive about him. Mr. Johnson is only one inch shorter than the low end of Mr. Hake’s range. Nevertheless, the fact that Ms. Garvey could not identify Mr. Johnson in the photo that she saw approximately six weeks after the shooting causes me to give less weight to her in-dock identification.
Cell Phone/Tower Evidence
140Based on the evidence of Mr. Pottage regarding the Sky 5.5 cell phone extraction reports, I find that Mr. Johnson was using this phone from April 9 to April 14, 2017 inclusive. The number that he used was 289 990 0313. He changed that number to 226 974 0845 on April 14, 2017, four days after the shooting.
141Based on the evidence of Mr. Kent regarding the tower records, I find that the phone was used in Barrie on April 9, 2017 from 16:16 to 18:37 after which it went to the Toronto area. The phone returned to the Barrie area on April 10, 2017, the day of the shooting, and was in Barrie from 8:17 a.m. to 10:30 a.m. Specifically, at 10:30, it pinged off a tower that was in the general vicinity of the robbery when it received a text message. As noted above, Ms. Garvey made the 911 call 13 minutes later at 10:43 a.m.
DNA Evidence
142As stated earlier, Mr. Johnson’s DNA was on the marijuana roach in Mr. Hake’s hallway. The roach also contained another person’s DNA which was insufficient to analyse. This court can draw an inference from the DNA evidence that Mr. Johnson was one of the two robbers if it is the only reasonable inference that the evidence permits. The court must consider other plausible theories and reasonable possibilities inconsistent with guilt. When considering a plausible theory in contrast to speculation, the question is whether the evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty.10
143Clearly, the roach was smoked prior to the robbery. One of the two robbers dropped it in Mr. Hake’s hallway. The defence submits that it was near the shell casing so the shooter likely dropped it. I do not accept this proposition. While exiting the hall, both robbers travelled over the same area. Either one could have dropped it. The Crown states that Mr. Johnson’s DNA was at the scene because he was a perpetrator. This is the only reasonable inference. The DNA evidence alone is sufficient. I do not accept this either. There is a plausible theory. Mr. Johnson and someone else touched the roach prior to the robbery. The other person kept the end of the roach. That person was one of the robbers who dropped it on the floor during the robbery. I find that this theory is reasonably capable of supporting an inference that someone other than Mr. Johnson dropped the roach. It is inconsistent with guilt. The fact that it was in the hallway does not mean that Mr. Johnson was the one who dropped it. The DNA evidence has no inculpatory value.
The Cumulative Circumstantial Evidence
144Mr. Johnson was using the Sky 5.5 phone and number 289 990 0313 in April 2017. He was fond of googling crimes. He googled some of which he was convicted and others of which he was not. The cell tower records show that Mr. Johnson’s phone was in the general area of the shooting 13 minutes prior to Ms. Garvey’s 911 call. The eye-witness evidence of Mr. Hake and Ms. Garvey is the best that could be expected given the traumatic, short period of time that they saw the unmasked man; however, it is a general description. Ms. Garvey’s in-dock identification almost three years after the shooting has less weight because she could not identify Mr. Johnson in the photo, six weeks after the shooting. An inference that Mr. Johnson dropped the roach in the hallway cannot be drawn because another plausible theory exists.
145Each piece of circumstantial evidence does not have to meet the test of beyond a reasonable doubt as long as the whole of the evidence leads to that conclusion. I find that the evidence supports a conclusion that Mr. Johnson probably was the unmasked man; however, probably is not good enough. I cannot find that Mr. Johnson was the unmasked man beyond a reasonable doubt.
146I find Mr. Johnson to be not guilty.
Madam Justice M.E. Vallee
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.
Date: January 26, 2021
Footnotes
- Mr. Hake went to the hospital in an ambulance and had emergency surgery. He made a full recovery.
- Mr. Hake referred to the man with the gun as “suspect number one”. He referred to the other man as suspect number two”. Ms. Garvey referred to the man without the gun as man number one and the man with the gun as man number two. For consistency, I will refer to them as the masked man and the unmasked man.
- Ms. Garvey called the unmasked man the “first man” because he came into her room first. She called the masked man the “second man” because he came into her room second. For consistency, I am referring to them as the masked man and the unmasked man.
- The defendant’s photo was not in this lineup.
- This was the defendant’s photo.
- Mr. Kent stated that not all cell sites are located on towers. For example, they can be attached to buildings. I will refer to them as towers for simplicity.
- These offences are relevant not as evidence of prior disreputable conduct. Rather, as is set out below, Mr. Johnson googled various crimes including the 25 Gunn Street shooting, these two robberies in which he participated and other crimes that he stated did not involve him.
- 2014 ONCA 158, see paras 49 – 51
- 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, p. 11
- See R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 para 35 and 38