COURT FILE NO.: CR-19-10000509-0000
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RUBENS KANATE
B. Kettles, for the Crown
A. Marchetti, for Mr. Kanate
HEARD: August 3-6, 2021
JUDGMENT
R. MAXWELL J.
[1] On March 4, 2018, four masked men robbed the Green Room, a marijuana dispensary located at 402 Spadina Avenue in Toronto. One of the four males brandished a handgun while fleeing the scene. Shortly after the robbery, five males in a van, which matched the description of a vehicle seen in the vicinity of the robbery, were arrested and charged with robbery. Further investigation led police to believe that an additional male, who was not in the van, was also involved in the robbery (the “outstanding suspect”). The Crown’s theory is that Mr. Kanate is the outstanding suspect.
[2] In addition to substantive charges arising from the robbery, Mr. Kanate is also charged with two counts of failing to comply with a recognizance of bail order and two counts of failing to comply with a probation order.
[3] The central issue on the trial is identity. The Crown’s case on identification is largely circumstantial. On behalf of the Crown, Mr. Kettles relies on the following evidence to establish proof beyond a reasonable doubt, Mr. Kanate’s identity as the male who brandished a handgun in the course of fleeing the scene:
the surveillance videos seized from several surveillance cameras from the Green Room which captured four males entering the business, the robbery itself, and four males fleeing from a rear exit of the business, one armed with a handgun;
the witnesses’ descriptions of the male with the handgun;
the evidence of Ashton Sookoo, the “getaway” driver in the robbery, that he picked up Mr. Kanate and that Mr. Kanate was among the group he transported to three dispensaries that evening, including the Green Room;
the evidence of Detective Palermo, the supervisor of the investigation who interviewed Mr. Sookoo and formed grounds to believe that there was an outstanding suspect from the robbery and that this person was Mr. Kanate;
the results of a search warrant executed at Mr. Kanate’s home at 4325 Kingston Road during which two baseball hats and a black hooded jacket were seized; in particular, a grey Chicago Bulls baseball cap with a black bill and a black puffy style “Roots” jacket seized at Mr. Kanate’s home resemble the hat and jacket worn by the male who pointed a handgun during the robbery;
the booking video of Mr. Kanate’s arrest, in which he is seen wearing a pair of grey high top running shoes, similar to those worn by the male in the surveillance video who pointed the handgun.
[4] For the reasons that follow, I am not satisfied that the evidence establishes, beyond a reasonable doubt, Mr. Kanate’s identity as one of the perpetrators.
Analysis
Applicable Legal Principles
[5] Mr. Kanate is presumed to be innocent of these charges. There is no burden on him to prove or disprove anything. The burden to prove the case beyond a reasonable doubt always rests with the Crown.
[6] As noted above, the Crown’s case on the central issue in this case is circumstantial. To satisfy the Crown's burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference from the primary facts. In the context of the identification issue in the case at bar, the Crown cannot succeed unless the only reasonable inference arising from the evidence is that Mr. Kanate was one of the males involved in the robbery. Based on the Crown’s theory, the Crown must also establish that the only reasonable inference arising from the evidence is that Mr. Kanate was the male who pointed the handgun during the robbery.
[7] As noted in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact must be careful about too readily drawing inferences of guilt. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits. The mischief of inference-drawing from circumstantial evidence arises where the trier of fact may conclude prematurely that a defendant is guilty without considering whether there are “reasonable alternative inferences”.
[8] Inferences consistent with innocence do not have to arise from proven facts. Justice Fairburn (as she then was) succinctly summarized this principle in R. v. Gill, 2017 ONSC 3558, at paras. 11-12:
Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4, at para. 58, the defence does not have to “ ‘prove’ certain facts in order for the jury to draw an inference of innocence from them”. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the “range of reasonable inferences that can be drawn” from the circumstantial evidence. As in Villaroman, at para. 35, “[i]f there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”
A theory alternative to guilt is not “speculative” simply because there is no affirmative evidence supporting the theory. A theory alternative to guilt can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 36-38 and para. 43.
[9] The question is whether the circumstantial evidence, “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38.
The Evidence as it Relates to Identification
(a) Video Surveillance
[10] The Crown introduced video surveillance of the robbery from four separate cameras in and outside of the Green Room. Exhibits 3a and 3b on the trial are video surveillance from cameras mounted at the front of the store reception, pointing inward, and the back of the store reception, pointing outward toward the main entrance to the store.
[11] Exhibits 3c and 3d are video surveillance from cameras mounted in the merchandise area, situated behind a door off of the main lobby. Exhibit 3c is video surveillance from a camera mounted near the door into the merchandise area, looking inward. Exhibit 3d is video surveillance from a camera mounted behind the clerk’s counter in the merchandise area.
[12] I make a number of factual findings from my review of the video surveillance, and from the Agreed Statement of Facts filed as an exhibit on the trial.
[13] All four males entered through the front entrance of the store and moved quickly to the back of the store to gain access to the merchandise area which was located behind a door at the back of the store. When the males entered, the two clerks in the merchandise area fled to the front of the store.
[14] Two males remained in the merchandise area only briefly before exiting through a rear exit leading to an exterior laneway behind the business. The two others remained inside the merchandise area. One removed tins from the shelves and dumped what appears to be dried marijuana from the tins into a backpack. The other, who was wearing a dark hooded jacket, grey high top running shoes, a grey backpack, and a baseball cap with what appears to be a Chicago Bulls logo on the front and a reflective sticker on the bill, removed cash from one of the cash registers.
[15] A short time later, one of the merchandise clerks who had fled earlier, returned and struck both males with a computer or tablet device mounted on a stand. Both males then ran toward the rear exit. The clerk and a patron, Mr. Kenny MacDonald, wrestled to the ground the male who removed the tins of marijuana. The other male fled through the rear exit, but returned, now with the hood of his jacket up and pointing a handgun at Mr. MacDonald.
[16] Mr. MacDonald used the male he was holding as a ‘shield’ to avoid being shot. The detained male managed to slip away and ran out the rear exit, together with the male who brandished the handgun.
[17] While the quality of the surveillance video is very good and permits observations of clothing, footwear and accessories worn by the four males, it is not possible to discern specific facial features from the surveillance video because all the males covered their faces.
[18] The movements of all the suspects are captured clearly on the surveillance. I find as a fact that the male wearing the dark hooded jacket, grey high top running shoes, a grey backpack, and a baseball cap with what appears to be a Chicago Bulls logo on the front and a reflective sticker on the bill, pointed a firearm (or imitation firearm) at Mr. MacDonald and that none of the other males brandished firearms during the robbery.
(b) Witness Descriptions
[19] As set out in the Agreed Statement of Facts, Mr. Ahmed Madi, an employee who worked the customer service desk in the lobby, described the males as wearing all black clothing and bandanas. When the males made their way to the merchandise area, Mr. Madi left the store by the front entrance and asked someone outside to call the police. Mr. Madi observed one of the males to have a handgun and described him as male, black, approximately 5’8” tall with short black hair. Mr. Madi did not provide any further description of the males.
[20] Mr. Iman Rahmati was a patron at the Green Room at the time of the robbery. Mr. Rahmati noticed four males with covered faces rushing into the store. From outside the store, he observed the four males run to the back of the store and close the door to the merchandising area. Mr. Rahmati called 911. There is no evidence that Mr. Rahmati provided any physical description of any of the males.
[21] As noted earlier, Mr. MacDonald was a patron of the Green Room that evening. As he was leaving, he observed three black males enter the store. One of the males, who he believed to be the eldest of the group, was carrying a handgun. Another male “rushed” the door and put on a facemask. All the males then entered and put on masks. Mr. MacDonald attempted to re-enter the store, but the main door was now locked. One of the employees had to unlock the front door in order to let Mr. MacDonald back inside to help.
[22] Mr. MacDonald described the person with the handgun as a male, black, dark complexion, in his 20s, 5’11”, approximately 170 lbs, wearing dark clothing, a hoody, sneakers, and jeans.
[23] I find that the descriptions provided by the witnesses are generic in nature and add little to what is already apparent from the video surveillance and which is not contested – that four black males entered the Green Room with their faces covered. One male, who was dressed in dark clothing with a hood and had short black hair, had a handgun.
(c) The White Dodge Caravan and the Arrests
[24] According to the Agreed Statement of Facts, both Mr. MacDonald and Mr. Rahmati described seeing a white Dodge Caravan in the vicinity of the rear of the Green Room. Mr. MacDonald observed the van traveling south on Spadina Avenue after the robbery and believed the licence plate of the van ended in “375”. It should be noted that his observation of the licence plate number is inconsistent with the licence plate of the van which was ultimately stopped by the police later that evening.
[25] Mr. Rahmati, while he was on the phone to 911, observed a white Dodge Caravan parked close to the back of the business. He observed one of the robbers climb into the van, but did not notice if any other males climbed into the vehicle before it departed from the scene.
[26] At approximately 10:15pm, a white Dodge Caravan with Ontario licence plate CAPC979 was observed by police in the area of College Street and Spadina Avenue, just north of the Green Room. Officers believed this to be the white Dodge Caravan associated to the robbery at the Green Room and stopped the van. The driver of the Caravan was Mr. Ashton Sookoo. There were four other males in the van. In total, three young persons and two adults were arrested. There is no direct evidence of the identities of the arrested parties, other than the driver, Mr. Sookoo.
[27] It is an agreed fact that Mr. Kanate was not one of the five people in the Dodge Caravan.
(d) The Evidence of Detective Constable Palermo
[28] Detective Palermo, a police officer for 22 years and member of the Hold-up squad, received information that five males were under arrest for the robbery at the Green Room. Detective Palermo testified that, although he initially believed all the robbers had been arrested, after taking a statement from the suspected getaway driver, Ashton Sookoo, he concluded that there was one outstanding suspect.
[29] Detective Palermo’s evidence was largely hearsay, however it was permitted in order to obtain the narrative of how he came to identify Mr. Kanate as the possible outstanding suspect.
[30] According to the information provided by Mr. Sookoo:
▪ he attended in the area of Kingston Road and Galloway to pick up someone he knew as “Ruben” or “Rhino” and “J”;
▪ when he attended in the area of Kingston Road and Galloway, “Ruben/Rhino”, “J”, and three other males got into the white Dodge Caravan he was driving (his mother’s car) and travelled to downtown Toronto;
▪ he described “Ruben/Rhino” as a black male, approximately 5’10”, 19 years of age;
▪ he stated that “J”’s full name is J.B.[^1];
▪ he stated that both J.B. and “Ruben/Rhino” entered the Green Room and executed the robbery with three other males;
▪ “Ruben/Rhino” was not among the five people arrested on March 4, 2018 following the robbery.
[31] After conducting further investigation (outlined below), Detective Palermo formed reasonable grounds to believe that “Ruben/Rhino” was Rubens Kanate, that he had been involved in the robbery, and that he had not yet been arrested.
[32] As will be discussed in greater detail below, on behalf of Mr. Kanate, Mr. Marchetti urges me to reject all of Mr. Sookoo’s evidence, including his evidence at trial that he picked up “Ruben/Rhino” and transported him with the others to three dispensaries that night. As with all witnesses, it is open to me to accept, some, none, or all of Mr. Sookoo’s evidence. I will address those parts of his evidence which raise concerns about his credibility and reliability.
[33] However, I accept his evidence that he picked up “Ruben/Rhino” with “J” and three other males on March 4, 2018. I find that the investigation conducted by Detective Palermo largely corroborates this aspect of Mr. Sookoo’s evidence. Detective Palermo testified to having conducted investigative checks which confirmed the following:
▪ the physical description Mr. Sookoo provided of “Ruben/Rhino” generally matched a RICI photo of Rubens Kanate;
▪ Mr. Kanate’s address, as noted on a recognizance of bail from January of 2019, listed a home address of 25-4345 Kingston Road, consistent with the area that Mr. Sookoo said he picked up “Ruben/Rhino”;
▪ in 2017 and 2019, Mr. Kanate had been arrested with J.B.; each was charged with robbery offences; the 2019 allegations related to a street-level robbery in the area of Kingston Road and Galloway Road;
▪ Mr. Kanate’s date of birth was consistent with Mr. Sookoo’s information that “Ruben/Rhino” was 18 years old.
[34] I would add that Mr. Sookoo provided evidence at trial as to how he knew “Ruben/Rhino”. He testified that he met “Ruben/Rhino” six months before the incident through J.B., with whom he attended high school. He had socialized with “Ruben/Rhino” approximately 20 times in the months preceding the incident, mainly to smoke marijuana. I find this evidence is credible.
[35] As such, I am satisfied that the male Mr. Sookoo identified in his testimony as “Ruben/Rhino” is Mr. Kanate and that Mr. Kanate was among the group of males who travelled in Mr. Sookoo’s van on March 4, 2018.
[36] I am also satisfied that the van which was seized by the police was Mr. Sookoo’s van and is the same van which was seen by witnesses at the scene and which can be seen on the video surveillance at the rear of the store during the robbery.
[37] The remaining issue is whether the evidence establishes, beyond a reasonable doubt, that Mr. Kanate was one of the four males who robbed the Green Room, and specifically, whether he is the male who brandished the handgun. The Crown’s case rests on the evidence of Mr. Sookoo and the evidence seized during a search of Mr. Kanate’s home. I will turn to this evidence next.
(e) Evidence of Ashton Sookoo
[38] Ashton Sookoo testified at the trial. It is common ground that Mr. Sookoo was driving the white Dodge Caravan which was stopped by police shortly after the robbery.
[39] Defence counsel Mr. Marchetti urges me to reject all of Mr. Sookoo’s evidence as incredible and untrustworthy. He argues that Mr. Sookoo’s evidence must be assessed through the lens that he minimized his involvement in the substantive offences to secure a plea to a lesser offence of being an accessory after the fact to robbery. The facts of Mr. Sookoo’s guilty plea did not form part of the evidence, however, Mr. Sookoo acknowledged in cross-examination that his plea to the lesser offence of accessory after the fact was based on a factual premise that he did not know the group intended to rob dispensaries on March 4, 2018.
[40] With the exception of the parts of his evidence noted above which I accept, I have concerns about the credibility and reliability of much of Mr. Sookoo’s evidence. Despite the fact that he had already pled guilty and had been sentenced, Mr. Sookoo was deliberately vague in important parts of his evidence and at times, gave misleading evidence.
[41] The most glaring example was in his evidence that he did not know about an intention to rob the third dispensary, the Green Room. In examination in chief, he testified that after he picked up the males, he travelled to the first dispensary, where only he got out and purchased marijuana. He testified that he then drove to a second dispensary and that he could not recall if anyone else got out of the van at the second dispensary, or alternatively, that only he went into the second dispensary and one person may have gotten out to smoke. In his testimony, he maintained that he did not know, at the time they arrived at the third dispensary (the Green Room), that the males intended to rob the dispensary.
[42] However, when the Crown took him to his transcript from his statement to the police, he accepted that he told police that as he returned from buying marijuana from the second dispensary, he saw all the males outside the van and walking toward the second dispensary. He acknowledged that after a few minutes, the males ran or “fast walked” back to the van and directed him to drive to the third dispensary (the Green Room). On cross-examination, he accepted that he understood or believed, at this point, that the males planned to rob the Green Room.
[43] While Mr. Sookoo may have legitimately forgotten some of the details, such as the specific street locations of the three dispensaries, I do not accept that he forgot whether anyone got out of the van at the second dispensary, the manner in which they returned from the second dispensary (running, or fast-walking), and something as critical as whether he knew, before arriving at the Green Room, that the other males intended to rob it. The manner in which he testified about the events leading up to the robbery was deliberately vague and misleading.
[44] A second area of his evidence which raises serious concerns about his credibility arises from his evidence about the white van seen in surveillance footage in a laneway behind the Green Room at the time of the robbery. During his evidence, he was unwilling to acknowledge that the van in the surveillance was his van, suggesting there are “a lot of white vans” in the city. It defies belief that another white van happened to drive through the laneway behind the Green Room at the exact time the robbery was occurring.
[45] His evidence became even more implausible when he testified that if the van in the surveillance was his, that he was only making a u-turn in the laneway behind the Green Room. It is entirely unbelievable that Mr. Sookoo drove his van around the back of the Green Room, in the immediate area of the rear door of the Green Room from where the four suspects ultimately fled for any reason other than to be positioned to pick up the group after the robbery. His evidence in this regard was tailored to fit with his position that he did not know the males were robbing the Green Room.
[46] It is also concerning that Mr. Sookoo admitted, in cross-examination, that he lied to the police when he said, during his statement, that he picked up the other males at Pape subway station, when in fact, he picked them up at Kingston Road and Galloway. He accepted on cross-examination that he lied because he was scared. This evidence, together with other evidence, demonstrates Mr. Sookoo’s motivation to minimize his exposure to the more serious consequences of being inculpated in the robbery. I find that much of his evidence is tainted by a desire to maintain the factual foundation of his guilty plea, that is, that he was unaware of a plan to rob dispensaries that night.
[47] With all of this said, even if Mr. Sookoo’s evidence were believed, he did not provide evidence to directly connect Mr. Kanate to the robbery at the Green Room. He was not able to give any evidence describing Mr. Kanate’s clothing (other than stating that “Ruben/Rhino” wore a hoodie), his movements after he left the van, or his participation in the robbery. He testified that he did not see where any of the males went after they exited the van. He did not see any of them enter the Green Room. Mr. Sookoo also did not provide any evidence which would assist in identifying Mr. Kanate as one of the males captured on surveillance video. He was unable to recognize anyone from the surveillance video, including the male with a handgun. He testified he did not see anyone with a firearm that night.
[48] Further, he did not specifically recall who returned to his van after the robbery and, in fact, testified that he believed everyone had returned. It was not until his statement to the police that he “pieced together” that someone was missing (although he testified that he gave the name “Ruben/Rhino” before there was any mention of an outstanding suspect).
[49] Whether Mr. Sookoo was being evasive or whether he genuinely had no evidence to offer on these points, his evidence, at its highest, establishes that he picked up Mr. Kanate, transported him with the other males to all three dispensaries, and that everyone in the vehicle got out of the van at the Green Room while he waited in the van.
(f) Search of 2013 Dodge Caravan and 25-4345 Kingston Road
[50] Detective Palermo obtained a judicial authorization to search the 2013 Dodge Caravan operated by Mr. Sookoo during the robbery and a search warrant for 4345 Kingston Road in Toronto.
[51] The search of the Dodge Caravan resulted in police locating a white running shoe that appears to be the match to a shoe located inside the merchandise room of the Green Room dispensary. The male who was held by Mr. MacDonald lost his running shoe while escaping from the Green Room.
[52] There was nothing else of evidentiary significance located in the Dodge Caravan.
[53] The search warrant for 25-4345 Kingston Road was executed on March 7, 2018.
[54] Mr. Kanate, his mother, and his sister were inside the unit. Detective Palermo advised Mr. Kanate that he was a suspect in a robbery and placed him under arrest. I accept Detective Palermo’s evidence that before leaving, Mr. Kanate put on a pair of grey Nike running shoes which were located near the front entrance of the unit.
[55] Detective Palermo testified that the shoes were of interest to him because the shoes “strongly resembled” the shoes worn by the outstanding suspect, based on a review of the video surveillance.
[56] Officers searched the unit and located:
a black puffy-style jacket with a white “Roots” label on the left chest;
a dark grey baseball cap with a red Chicago Bull logo on the front and a reflective sticker on the bill of the cap;
a black baseball hat with a white basketball logo on the front;
$1120 in Canadian currency, all in $20 bills;
a quantity of dried marijuana.
[57] There is no evidence of where these items were located within the unit, but Detective Palermo testified that Mr. Kanate’s mother directed him to the areas of the house where Mr. Kanate’s personal belongings were located.
[58] Photos of the jacket, shoes, hats, and currency were filed as exhibits at the trial.
[59] Mr. Marchetti argues that, when the video surveillance is reviewed carefully, there are clear distinctions between the jacket and hats located in Mr. Kanate’s home and those worn by the male brandishing the handgun in the surveillance.
[60] I agree. When I reviewed Exhibit 3c and 3d (the surveillance video from the merchandise room), I conclude that the garment worn by the male brandishing the handgun has features that are distinguishable from the jacket located in Mr. Kanate’s home. The garment worn by the male brandishing the handgun appears be a puffy black vest with a dark hoody underneath. There appears to be a separation between the neck of the vest and the hood. Similarly, there is a separation between the arm holes of the vest and the sleeves. In this respect, the clothing worn by the male with the handgun is distinguishable from the black puffy jacket located in Mr. Kanate’s home.
[61] Similarly, there are differences between the hat worn by the male brandishing a handgun in the surveillance video and the hats located in Mr. Kanate’s home. The Chicago Bulls baseball cap located in Mr. Kanate’s home is distinctly two coloured – light grey on top with the emblem of the Chicago Bulls in red, and a black bill with a reflective sticker in the centre. In reviewing the surveillance video, the male with the handgun is wearing a hat that appears to be a solid dark colour. I come to this conclusion both from my own observation of the hat on the video, and by contrasting it to the grey backpack and grey running shoes the male is wearing. The backpack and shoes noticeably contrast with the male’s black vest and hood. There does not appear to be any distinction between the top of the hat and the bill of the hat worn by the male brandishing the handgun. It appears to be all dark and consistent with the colour of his vest and hood – black.
[62] The Crown does not suggest that the other hat located in Mr. Kanate’s home, which is all black but has a white basketball emblem on the front, is the hat the gunman wore during the robbery. I find that the emblem of this hat is inconsistent with the emblem on the hat worn by the male with the handgun. The crest on the hat worn by the male with the handgun appears to be the red emblem of the Chicago Bulls.
[63] What remains of the clothing seized from Mr. Kanate are the grey running shoes. I accept that the grey Nike running shoes Mr. Kanate put on before being arrested look similar to the grey running shoes worn by the male brandishing the handgun in the surveillance video. The shoes are some circumstantial evidence of identification. However, the probative value of this evidence is limited. I accept Detective Palermo’s evidence, on cross-examination, that this type of running shoe is common.
[64] The only other evidence arising from the search of Mr. Kanate’s home was the cash seized. However, it is clear from the video surveillance that the male with a handgun who removed the money from the register took an assortment of currency of different colours. The money located in Mr. Kanate’s home was in $20 bills. It cannot be inferred (and the Crown does not argue) that the money located is the money stolen from the Green Room. Nor is there any evidence to establish that any marijuana seized from Mr. Kanate’s home was marijuana from the robbery.
[65] Therefore, the clothing and property located in Mr. Kanate’s home, in my view, has little or no probative value to the issue of identity.
(g) The Handgun Seized
[66] Officers were dispatched to the scene. Later that evening, a unit began searching the area and located a discarded black handgun at 22 Oxford Street, the first cross-street north of 402 Spadina Avenue where the Green Room is located. The handgun was submitted to the Centre for Forensic Sciences for analysis and was determined to be an air pistol. The safety of the air pistol was in the “off” position and was ready to fire, however there was no CO cannister in the firearm. No testing results were tendered as evidence on the trial.
[67] There is no evidence linking the air pistol to any suspect. Therefore, it is of no probative value on the issue of identity.
[68] There was no firearm located during the search of Mr. Kanate’s home, or during the search of his person, incident to his arrest.
Conclusion
[69] I find, when viewed in totality, that the circumstantial evidence does not establish, beyond a reasonable doubt, that Mr. Kanate was one of the males who entered the Green Room and participated in the robbery on March 4, 2018. There are inferential gaps in the evidence that cannot be filled on the evidence presented. Specifically, there is no direct evidence, and insufficient circumstantial evidence, to establish that Mr. Kanate entered the Green Room. The probative value of the video surveillance to the issue of identity is linked to the similarity between the clothing worn by the male with the handgun and the clothing seized from Mr. Kanate’s home. However, as noted above, there are significant differences between the clothing items. For the reasons set out above, Mr. Sookoo’s evidence offers limited value on the issue of identification. Nor does the evidence of the other eyewitnesses assist materially on the issue of identification, for the reasons discussed above.
[70] While I agree with the Crown’s position that it is highly suspect that Mr. Kanate would be with this group of males but not participate in the robbery, the evidence does not establish, beyond a reasonable doubt, that he did participate.
[71] Moreover, I find that there is at least one available inference, inconsistent with guilt, arising from the evidence: Villaroman. On the evidence presented at trial, it is a reasonable possibility or inference that not everyone who left Mr. Sookoo’s van went into the dispensary. It is an agreed fact that four males participated in the robbery and five were arrested (including Mr. Sookoo). Accepting Mr. Sookoo’s evidence that he picked up five males and that all five left his van at the Green Room while he waited in the van, that leaves open the possibility that Mr. Kanate was in Mr. Sookoo’s van, got out with everyone else, but did not enter the dispensary or return to the van. That is not speculative, in light of the evidence that five people got out of the van, but only four participated in the robbery.
[72] For all these reasons, I find Mr. Kanate not guilty on all counts. I thank counsel for their able advocacy and professionalism throughout this matter.
R. Maxwell, J.
Released: November 30, 2021
COURT FILE NO.: CR-19-10000509-0000
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RUBENS KANATE
JUDGMENT
R. Maxwell, J.
Released: November 30, 2021
[^1]: Mr. Sookoo provided Detective Palermo with “J”’s full name, but his name has been initialized in this judgment to protect his identity, pursuant to s. 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1.