COURT FILE NO.: CR-21-53

DATE: 2022 11 17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Jermaine Watson

Mr. Michael Godinho, for the Crown

Mr. Tyler Smith, for Mr. Watson

HEARD: September 26, 27, 28, 29 and October 3, 2022

REASONS FOR JUDGMENT

conlan j.

I. The Charges

[1] Jermaine Watson (“Watson”) was tried on four counts, as follows (all references below are to the Indictment dated June 30, 2021):

count 1 – that he, on or about November 7, 2019, at Oakville, did break and enter a dwelling house and commit therein robbery with a firearm, contrary to section 348(1)(b) of the Criminal Code;

count 2 – that he, on or about that same date and at the same place (in relation to count 1), did use a firearm in robbing the victims of personal items, contrary to section 344(1)(a.1) of the Criminal Code;

count 4 – that he, on or about January 8, 2020, at Toronto, did break and enter a dwelling house with intent to commit an indictable offence therein, contrary to section 348(1) of the Criminal Code; and

count 7 – that he, on or about that same date and at the same place (in relation to count 4), did without lawful authority confine the victim, contrary to section 279(2) of the Criminal Code.

[2] Watson was charged with a co-accused, however, Watson was tried alone, without a jury.

[3] With regard to count 2, the Crown is not seeking to prove that the weapon used was a real firearm. The Crown is content to rely on the allegation that it was an imitation firearm.

II. The Trial

[4] Due to the hard work of both counsel, Mr. Godinho for the Crown and Mr. Smith for Watson, the trial proceeded entirely by way of exhibits filed, including a very lengthy agreed statement of facts (Exhibit 1), and submissions. No viva voce evidence was presented. The defence elected to present no evidence at all.

[5] The trial took five days to complete, including mid-trial voir dires and the closing submissions of counsel. Because Watson is currently in custody but at a health care facility, the trial was conducted over the Zoom platform.

[6] The only contested issue at trial is that of identity, whether Watson was the person, or one of the persons, who committed the offences charged. There is no doubt that the crimes occurred, but has the Crown proven beyond a reasonable doubt that Watson committed them? That is the question to be decided by this Court.

III. The Presumption of Innocence, and the Burden and Standard of Proof

[7] Watson is presumed to be innocent of the charges. He had no burden to testify or to tender any evidence or to prove anything.

[8] The burden of proof lies exclusively with the prosecution. And the standard of proof is a high one. It is not proof to an absolute certainty, but it is a standard that is closer to that than it is to proof of probable or likely guilt. The Crown must prove its case beyond a reasonable doubt, including on the issue of identity which is the question before the Court. Anything short of that must result in an acquittal on the offence in question.

[9] Proof beyond a reasonable doubt requires that this Court be sure of Watson’s guilt before finding him so.

[10] The verdicts need not be the same across the various counts, though the way that this case was presented would make it unusual that, for example, Watson would be found guilty of one count with regard to place A but acquitted on the other count regarding that same place.

IV. A Brief Summary of the Evidence at Trial

The Agreed Statement of Facts

[11] The agreed statement of facts, Exhibit 1, is 24 pages in length and too thorough to set out, in its entirety, in these reasons. What follows are some of the highlights of the facts that are agreed upon by both the prosecution and the defence.

The Oakville Home Invasion

[12] Exhibit 1 begins with a summary of the civilian evidence regarding the home invasion robbery that occurred in Oakville. The owner of the house was in China at the time, but seven persons, all Chinese individuals, were inside when the incident occurred.

[13] The suspects are believed to have entered the residence by force, using a crowbar, in the very early morning hours. The four or five suspects who entered the home were disguised with masks. The occupants were bound with tape over their mouths and with zip-ties on their hands and feet. One of the victims had what he believed was a pistol held to his head. Another victim was beaten when trying to fend off the suspects. Another victim was struck in the head with the pistol, suffering bruising and injuries to the face. One victim saw that the suspects also had knives with them.

[14] One of the victims was of the belief that the firearm was not real.

[15] Inside, the suspects demanded to know where an alleged safe was located. The suspects made threatening remarks. They rummaged around and searched the home. They eventually left after about 15 to 30 minutes. One of the victims retrieved some scissors and helped free everyone. Police were called.

[16] The suspects stole two motor vehicles from the home – a Ford F150 truck and a Honda Ridgeline truck. Also stolen were clothing and several electronics including cellular telephones, passports, identification cards, credit and debit cards, jewellery, cash, and the CCTV security camera recording.

[17] The home was left in disarray. It had been completely ransacked including the bottom ripped off a couch and ventilation ducts ripped out.

[18] The suspects left behind duct-tape and zip-ties.

[19] The suspects were described by the victims as being black males and one white male.

[20] Police retrieved surveillance footage from a nearby home. The footage shows, among other things, two white utility vans and a dark-coloured sedan, all in the area of the home invasion. At one point, a person is seen walking from the direction of the home that was invaded by the suspects and entering the front passenger door of one of the white utility vans. That van then completes a three-point turn and drives away.

[21] One of the victims was able to give to police an approximate location of his stolen cellular telephone, through GPS tracking. At the request of Halton police, Toronto police attended at the location in question, at Milliken Boulevard and Finch Avenue East in Toronto, and observed the stolen Honda Ridgeline. It was parked at a plaza. There were no suspects around at that time.

[22] Police later retrieved surveillance footage from that plaza, showing the Honda Ridgeline entering the parking lot in the company of a sport utility vehicle. No suspects are seen on the video. The two vehicles park. The sport utility vehicle then leaves the lot a few minutes later.

[23] Police investigation, through an analysis of cellular telephone records, revealed that only one telephone number was using the cellular telephone towers closest to both the home that was invaded by the suspects and the lot where the Honda Ridgeline was located, at the times that the police believe the home was invaded and the Honda Ridgeline was ditched at the lot, and that telephone number was 647-713-6611, belonging to Watson.

[24] Further police investigation revealed many calls between 647-713-6611 and another number, 365-778-7670, the latter belonging to Kristopher Matthews (“Matthews”, the co-accused on the Indictment), in the early morning hours on the date of the home invasion in Oakville.

[25] The police investigation also showed that both of those telephone numbers, during the material hours, consistently used the cellular telephone tower closest to the home that was invaded.

[26] The police investigation also showed that both of those telephone numbers, during the material hours, were using cellular telephone towers that were progressively running east of the home that was invaded (and it should be noted that Toronto, where the Honda Ridgeline was recovered, is east of Oakville).

[27] The police investigation showed, as well, that both of those telephone numbers, around the time that the police believe the Honda Ridgeline was ditched at the lot in Toronto, were using a cellular telephone tower located approximately two kilometres away from that location. The 647-713-6611 telephone number was also using the cellular telephone tower located at the same address as the lot where the Honda Ridgeline was recovered.

The Scarborough Home Invasion

[28] In the early morning hours on the date in question, about two months after the date of the home invasion that occurred in Oakville, three suspects entered a home in Scarborough. Force was used to gain entry through a side door.

[29] The victim awoke and was confronted in her bedroom by a male wearing a mask. That suspect taped the victim’s mouth shut and zip-tied her wrists.

[30] The victim could hear what she thought were three males talking. They were discussing that they were looking for a Chinese person and thought that they had entered the wrong home. The victim noticed the odour of alcohol on one of the suspect’s breath as he spoke to her. The suspects asked the victim who lived upstairs and who lived in the neighbourhood and whether any of those people were Chinese.

[31] The victim heard one of the suspects talking on a phone with someone. That suspect was saying that there were no Chinese people inside the home. The suspects appeared to the victim to be shocked that she was white and not Chinese.

[32] At one point, the victim smelled marihuana.

[33] Appearing to accept that they had entered the wrong home, the suspects apologized to the victim, zip-tied her ankles together and told her to give them a few minutes to escape before trying to move herself towards some scissors to cut the zip-ties. One of the suspects said that they were armed and that things would have gone differently if she had not cooperated with them.

[34] The suspects left the home, and a few hours later the victim attended at the police station to describe what had occurred.

[35] The zip-ties and duct-tape were left behind.

[36] The police retrieved security camera footage from the home next door to the victim’s residence. That footage shows three suspects exit a white minivan and approach the victim’s home. About one hour and twenty minutes later, the suspects are seen getting back into the same white minivan and driving away.

[37] About twenty minutes later, the same white minivan is seen parking in front of the home with the security camera. The driver exits and walks up the driveway to the home adjacent to the home with the security camera (two houses down from the home that had been broken into earlier). For further clarity, the home invaded is house 64. The home with the security camera is house 66. The third home is house 68.

[38] The driver then goes back to the white minivan. Shortly thereafter, all three suspects that entered house 64 are seen walking up the driveway and to the rear of house 68. The screen door at the rear of house 68 was removed from its tracks. The suspects then fled the area. A light is seen come on inside house 68.

The Police Make Arrests, and Other Relevant Information

[39] On January 28, 2020, twenty days after the Scarborough home invasion and about 2.5 months after the Oakville home invasion, Watson was arrested in Toronto by members of the Halton police. A cellular telephone with the number 647-713-6611 was retrieved from his pocket.

[40] On that same date, Matthews was arrested in Oakville. A cellular telephone with the number 365-778-7670 was retrieved from his pocket.

[41] The police provided DNA samples to the Centre of Forensic Sciences (“CFS”). The CFS determined that the DNA profile found on a zip-tie used to bind the Scarborough victim matched the DNA profile found on a swab taken from the crowbar that was used during the Oakville home invasion. Rightfully so, this DNA match is described in Exhibit 1 as a “scene-to-scene hit”, connecting the Oakville occurrence to the Scarborough occurrence.

[42] DNA samples were also taken from Watson and Matthews. Matthews’ DNA was determined to be the source of the DNA profile found on the crowbar used during the Oakville home invasion. Watson’s DNA was excluded as being the source of any DNA found on any of the items examined from the Oakville home invasion.

[43] Matthews’ DNA was also determined to be the source of the DNA profiles found on two of the zip-ties and on the duct-tape used to bind the victim of the Scarborough home invasion. Watson’s DNA was excluded as being the source of any DNA found on any of the items examined from the Scarborough home invasion.

V. The Crown’s Similar Fact Application

[44] At trial, the Crown brought a count-to-count similar fact evidence application. The essence of the application was to have the Court treat the evidence related to the Oakville home invasion as being admissible on the counts related to the Scarborough home invasion, and vice-versa.

[45] The application was contested by the defence, although it was recognized by everyone that this Court had already ruled in favour of the prosecution on the same application as it concerned Matthews, R. v. Mr. M., 2022 ONSC 443.

[46] The Court gave an oral ruling that the Crown’s application was granted, with reasons to follow. These are those reasons.

[47] The very recent decision of the Court of Appeal for Ontario in R. v. Atwima, 2022 ONCA 268 is instructive on the governing legal principles.

[48] That case, similar to ours, involved multiple robberies committed by masked men, and the issue was identity, and the Crown brought a similar fact application across all counts in an effort to prove identity.

[49] Under the heading “the law of similar act evidence to establish identity in the group context”, the Court of Appeal in Atwima, supra set out the following legal principles:

i. similar act evidence is presumptively inadmissible, even across counts [paragraph 36, citing R. v. Poulin, 2017 ONCA 175, at paragraph 40];

ii. the onus rests on the Crown to rebut that presumption by satisfying the court that the probative value of the evidence outweighs its potential prejudicial effect [paragraph 37, citing R. v. Handy, 2002 SCC 56, at paragraph 55];

iii. the probative value of the evidence stems from the objective improbability of coincidence, while the prejudicial effect relates to the moral and reasoning prejudice that may result from its admission [paragraph 38, citing Handy, supra, at paragraphs 31, 36, and 47-48, and R v. Shearing, 2002 SCC 58, at paragraph 68, and R. v. Lo, 2020 ONCA 622, at paragraphs 110-111];

iv. many of the concerns about prejudice will be attenuated in a judge-alone trial where the application relates to the cross-count use of evidence already elicited at trial [paragraph 38, citing R. v. Norris, 2020 ONCA 847, at paragraph 24, and R. v. J.M., 2010 ONCA 117, at paragraph 87];

v. where the issue that the evidence allegedly goes to is that of identity, the demand for similarity between the acts increases to that standard often referred to as “strikingly similar” [paragraph 39, citing R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at paragraph 45, and R. v. Perrier, 2004 SCC 56, at paragraphs 19-20, and R. v. Durant, 2019 ONCA 74, at paragraph 98, and Handy, supra, at paragraph 78];

vi. at the first stage of the analysis, the court looks to the acts and asks how similar they are, remembering that most often the requisite degree of similarity will result from an accumulation of the commonalities as opposed to one single thing [paragraph 40, citing Arp, supra, at paragraph 45, and R. v. Jesse, 2012 SCC 21, at paragraphs 5, 10, 12, and 24];

vii. a non-exhaustive list of factors to help a judge at the first stage includes the proximity in time of the similar acts, the extent to which the acts are similar in terms of their details, the number of occurrences involved, the overall circumstances surrounding the acts, their distinctive features, and whether there were any intervening events [paragraph 41, citing Handy, supra, at paragraph 82];

viii. where the evidence of similarity points towards the acts having been likely committed by the same person, the court must then proceed to the second stage of the analysis and ask whether there is “some evidence” linking the accused to the similar acts, which “some evidence” test amounts to a relatively low evidentiary threshold at the admissibility phase [paragraph 42, citing Perrier, supra, at paragraphs 23-24, and R. v. Woodcock (2003), 117 C.C.C. (3d) 346 (Ont. C.A.), at paragraph 81, and Arp, supra, at paragraphs 54-57, and R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at page 954, and Durant, supra, at paragraph 91, and Jesse, supra, at paragraph 63];

ix. in a case of multiple crimes committed by a group, where the Crown seeks to use group similar act evidence to establish the identity of the individual accused (as opposed to group identity), the Crown must first establish that it is “highly improbable” that more than one group “employing the same modus operandi committed the crimes at issue”, with reference to that same non-exhaustive list of factors outlined in Handy, supra, at paragraph 82 [paragraph 45, citing Perrier, supra, at paragraph 26];

x. then, if that is established by the Crown, the analysis must continue to assess whether there is a link between the individual accused and the crimes of the group [paragraph 46, citing Perrier, supra, at paragraph 25]; and

xi. that question of linkage between the individual accused and the crimes of the group is impacted by whether the composition of the group always remained the same across all of the acts; specifically, where the Crown can prove that the group membership never changed, that the group always remained intact and never committed the acts unless all were present, and that the accused was a member of the group and present for the acts, then nothing more is required to connect the individual accused to the crimes of the group; but, where the Crown cannot prove static membership in the group, then something more is required to connect the individual accused to the crimes of the group, such as a distinctive role performed by the accused that could not have been fulfilled by someone else or other independent evidence linking the accused to each offence [paragraphs 47-50, citing Perrier, supra, at paragraphs 25, 32(1), and 32(2)].

[50] In our case, the Crown is seeking to use group similar act evidence to establish the identity of this individual accused, Watson. Thus, the Crown must first establish that it is “highly improbable” that more than one group “employing the same modus operandi committed the crimes at issue”, with reference to the non-exhaustive set of considerations outlined in Handy, supra, at paragraph 82.

[51] I respectfully disagree with the defence submission that this is not a Perrier, supra-case because we are only dealing with two occurrences rather than “several”, as that term is used at paragraph 31 in Perrier, supra.

[52] The reference to the word “several” at paragraph 31 must not be read in isolation. In other parts of the opinion authored by Justice Major on behalf of the Court, including the very first paragraph under the heading where Justice Major begins to relate the law of similar fact evidence to group criminal activity, the word “crimes” is used, meaning anything more than one occurrence (paragraph 26).

[53] In addition, the underlying rationale for the Court’s analysis in Perrier, supra was to give triers of fact guidance on when “they should be permitted to draw an inference that the same gang committed the acts” (paragraph 31). It seems to me that the availability of that inference should not depend on whether we are dealing with two or more than two occurrences. Rather, the significance of whether we are dealing with two or more than two occurrences will be a factor in determining the degree of similarity between the occurrences.

[54] Taking some direction from the Court in Handy, supra, at paragraph 82, I am satisfied that there are so many compelling similarities between the two home invasions that, considering the totality of those similarities, it can safely be concluded that the modus operandi was the same in both instances and, further, it is indeed highly improbable that more than one group committed the two home invasions in Oakville and Scarborough.

[55] The many similarities include:

i. timing – the dates are not that far apart, and both home invasions occurred in the early morning hours;

ii. geography – both home invasions occurred in what appear to be similar residential neighbourhoods in the Greater Toronto Area;

iii. the use of zip-ties;

iv. the use of duct-tape;

v. the searching for Chinese targets, specifically;

vi. that the suspects never engaged in what might be described as excessive violence with the occupants of either home;

vii. that none of the occupants of either home was bound with zip-ties or tape in a much competent manner, resulting in fairly easy escape from those bindings;

viii. that we know at least one culprit deposited DNA at both scenes;

ix. that a white van was involved at both scenes;

x. that the disguises and clothing of the suspects at both scenes were of a likeness;

xi. that the suspects were armed at both locations (or at least they said that they were at the Scarborough home);

xii. the involvement of marihuana at both locations – cannabis was stolen from the Oakville home, and marihuana was smelled by the victim at the Scarborough home; and

xiii. significantly, the suspects were not that smart at either location.

[56] On that last point, this Court is not trying to be flippant or funny. There is nothing funny about this case. It is an important point though, not a trademark or a signature but something quite striking that the two home invasions have in common. The assailants were incompetent. First, in Oakville, they seemed interested in a safe that they could not find. In Scarborough, they seemed interested in Chinese persons that they could not find, and in fact they entered the wrong home altogether.

[57] We then move to the linkage question. On our evidence, the Crown cannot prove that the membership of the group of suspects remained static. That is because Exhibit 1 refers to four or five suspects being present inside the home in Oakville and three suspects being present inside the home in Scarborough. That, alone, forces the linkage question to an assessment of whether there is something more to connect Watson to the two home invasions, such as a distinctive role performed by him or other independent evidence connecting Watson to each home invasion.

[58] There is independent evidence connecting Watson to each home invasion.

[59] Beginning first with the home invasion in Oakville, only one telephone number was using the cellular telephone towers closest to both the home that was invaded by the suspects and the lot where the Honda Ridgeline was located, at the times that the police believe the home was invaded and the Honda Ridgeline was ditched at the lot, and that telephone number was 647-713-6611, belonging to Watson. Watson was arrested by the police with a cellular telephone in his pocket, and that telephone had that number.

[60] Also, there were many calls between 647-713-6611 and 365-778-7670 (Matthews) in the early morning hours of the date of the home invasion in Oakville, and we know that Matthews was at that home with the crowbar that he left his DNA on.

[61] Further, both of those telephone numbers, during the material hours, consistently used the cellular telephone tower closest to the Oakville home.

[62] And both of those telephone numbers, during the material hours, were using cellular telephone towers that were running progressively east of the home that was invaded and towards the location where the stolen Honda Ridgeline was recovered.

[63] In addition, both of those telephone numbers, around the time that the police believe the Honda Ridgeline was ditched at the lot in Toronto, were using a cellular telephone tower located approximately two kilometres away from that location. Watson’s telephone number was also using the cellular telephone tower located at the same address as the lot where the Honda Ridgeline was recovered.

[64] Further, on the cellular telephone seized from the pocket of Watson at the time of his arrest was a video of a drive-by of the specific Oakville home that was invaded. The still photographs from that video clearly show the address number on the bricks above the top left corner of the overhead garage door.

[65] Also, on that cellular telephone was an outgoing message to a person, “Ziven”, sent very shortly after the occurrence at Oakville, saying “job done”.

[66] As well, on that cellular telephone was an outgoing communication to someone else, sent shortly after the occurrence at Oakville, attaching a video of what appears to be cannabis in sealed bags. One of the items stolen from the Oakville home was cannabis in vacuum sealed bags.

[67] That is certainly enough independent evidence to sufficiently connect Watson to the Oakville occurrence.

[68] Turning next to the home invasion in Scarborough, the independent evidence connecting Watson to that occurrence is as follows.

[69] On the cellular telephone seized from the pocket of Watson at the time of his arrest was an electronic communication received from Ziven, providing the specific address of the Scarborough residence, house number 68. The house number was given, the street name was given, and the postal code was given. That message was sent and received about two weeks before the occurrence in Scarborough.

[70] The day after that message was sent and received, there were further messages between Ziven and the cellular telephone seized from the pocket of Watson upon his arrest, where it is stated that “the house” had been checked.

[71] In addition, on the cellular telephone seized from the pocket of Watson at the time of his arrest was a video of a drive-by of houses 64 (the wrong one that was broken into by the assailants), 66 (the one with the security camera) and 68 (the one that had its rear screen door removed from the tracks).

[72] Also, on that cellular telephone were photographs of what appears to be a young Asian couple. The photographs were sent to that cellular telephone by Ziven. The photographs were sent and received about two weeks before the Scarborough occurrence. Remember that the assailants who entered the wrong home in Scarborough were looking for Chinese individuals.

[73] Further, on January 7, 2020, the day before the Scarborough occurrence, there were dozens of electronic communications (messages and calls) between Ziven and the cellular telephone seized from Watson’s pocket upon his arrest. A few of the messages spoke about pizza being delivered to 1421 Kennedy Rd, Scarborough, to be picked-up by the person operating that cellular telephone. That address is not far away from houses 64, 66, and 68. And that address is not far away from another address, 49 Jolly Way, that also appears in messages between Ziven and that cellular telephone seized from the pocket of Watson when he was arrested, which Jolly Way address is believed by the police and the Crown to have been some safe-house or staging place for the Scarborough occurrence.

[74] In the hours just before the Scarborough occurrence, there were messages between Ziven and the cellular telephone seized from Watson’s pocket at the time of his arrest, which messages spoke about a van to be picked up. Remember that Exhibit 1 indicates that a white minivan was in the area of the Scarborough occurrence at the time of the occurrence.

[75] In addition, at the time that the assailants were inside house 64 (the wrong house), there were many calls between Ziven and the cellular telephone seized from Watson’s pocket at the time of his arrest. Then there were repeated messages from Ziven to that cellular telephone, giving the specific 68 address.

[76] That is certainly enough independent evidence to sufficiently connect Watson to the Scarborough occurrence.

[77] It was for all of the aforementioned reasons that the Crown’s count-to-count similar fact evidence application was granted by this Court. It more than satisfied the Perrier, supra test for the admissibility of similar fact evidence in the context of group activity, where the group membership was non-static, as here, and where the Crown seeks to use the evidence to establish the identity of the individual accused on trial, as here.

VI. The Crown’s Hearsay Application

[78] At trial, the Crown brought an application to admit for their truth the out-of-court statements provided to the police by the two occupants of house 68 in Scarborough. Those two witnesses were not called at trial because they are, according to the police, believed to be somewhere in China.

[79] The application was contested by the defence. The Court reserved its decision.

[80] For the reasons that follow, the application by the Crown is dismissed. The hearsay evidence of those two witnesses is inadmissible at trial.

[81] The evidence sought to be admitted by the Crown are the police statements of the young Asian couple who lived at house 68 in Scarborough at the time of the Scarborough occurrence. What the Crown wants from those two statements are that (i) the couple is Chinese, (ii) they lived at house 68 at the time, and (iii) they owned high-end luxury cars at the time.

[82] It is the theory of the police and the Crown that this man and woman are the individuals shown in the photographs that were sent by the person known as Ziven to the cellular telephone seized from Watson’s pocket at the time of his arrest, although on this application the Crown is not seeking the admissibility of the hearsay evidence for that specific purpose.

[83] There is no dispute between counsel about the law and the requirements of necessity and reliability under the principled approach to hearsay evidence outlined by Justice Charron on behalf of the Supreme Court of Canada in the seminal decision in R. v. Khelawon, 2006 SCC 57.

[84] In my view, neither necessity nor reliability has been established here.

[85] On necessity, it is true that the two witnesses are apparently unavailable to testify because they cannot be found. It is believed that they returned to China.

[86] That does not end the necessity enquiry, however. “In an appropriate case, the court in deciding the question of necessity may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party”. Khelawon, supra, at paragraph 104.

[87] Aside from the two police statements themselves, there is no evidence on the within application but for the affidavit of the lead investigator. There is nothing in that affidavit to explain what efforts were made by the police to preserve this unsworn, unaffirmed evidence beyond the mere recording of the two interviews.

[88] The police knew or ought to have known that there was a serious risk that the couple would return to China.

[89] When the young man was interviewed, he was visibly shaken when he discovered that he may have been the intended target of what transpired at house 64. He told the police in the interview that his family was in China. He told the police in the interview, near the end, that he better “go back to China” (page 61 of the transcript, at line 22, but the audio-video itself must be referred to for this item, especially; what he actually says is “oh, my God, fuck, go back to China”).

[90] When the young lady was interviewed, she told the police that they were already planning to move away to some undetermined place, whether in Ontario (like Richmond Hill), or somewhere else in Canada (like Vancouver), or elsewhere. She explained that her parents and her husband’s parents were all in China. She stated expressly that the eventual plan was for them to return to China.

[91] The police knew from the two interviews that this young couple had no children, had no roots in Canada, did not own the house that they were living in, had not been in Canada for very long, and were very afraid about what had just happened on their street in Scarborough. The police also knew that the two statements were not sworn or affirmed and there would be no chance for the accused to test the veracity of the information provided until a preliminary inquiry or a trial took place.

[92] Yet, with that knowledge, the Crown sought a direct indictment in this case, eliminating the chance for any preliminary inquiry. Further, the Crown brought the Toronto charges to Halton, cancelling the scheduled trial in that other jurisdiction. This meant that there was even more time between the date that the two police statements were taken and the date of any first opportunity for the accused’s counsel to cross-examine the declarants. It also meant a near certainty that the couple would be long gone from Scarborough by the time that they would be expected to testify in court.

[93] Still, nothing was done to further preserve the evidence or to protect the accused’s procedural rights through an oath or affirmation or through out-of-court questioning or by any other means.

[94] Necessity cannot be established through the neglect of the proffering party. It has not been established here.

[95] On reliability, there is no excuse for the two statements to have been taken unsworn and unaffirmed and without any interpreter assistance.

[96] There were clear and unequivocal language difficulties throughout the two police interviews. Right at the beginning of the young man’s interview, he stated that his English skills were “not good enough” (page 3 of the transcript, at line 19). He then asked for a translator, but the officer replied that, although one was there at the police station at the time, “she’s actually tied up on something” (page 4 of the transcript, at lines 8-12). Later in the interview, the young man stated, “I can’t understand what, what you say”, and he asked again for a translator (page 56 of the transcript, at lines 3-7).

[97] The young lady told her interviewer that she was “trying to understand” what was being said in English (page 9 of the transcript, at line 15). Some of her answers to the most simple and basic questions make no sense, and there is no doubt in this Court’s mind that the nonsense was because of the language barrier. As just one clear example, the officer, in an effort to understand the layout of the main entry to the house, asked her whether a person who goes through the front door would then be inside the house, and she paused with no answer. The officer asked again, and she replied “no, we just living in our house and, uh, the basement doesn’t have private, uh, access” (page 12 of the transcript). The answer makes no sense. In addition, she gave a street name to the officer of where they lived that the transcriptionist spelled substantially different than what the actual name is, and when this Court listened to the audio carefully, several times, it did not sound like she said the true name of the street. The officer even repeated the wrong name of the street later in the interview, based on what she said. And when she was told about what had just happened on the street, the young lady presented with an unusual flat affect as if she did not really appreciate the gravity of her and her husband being the intended targets of a home invasion.

[98] These individuals deserved to have an interpreter help them through this stressful experience. For this Court to ignore that and admit the statements despite the serious language difficulties would be an injustice. Reliability, even at the threshold admissibility stage, has not been met.

[99] The Court takes no comfort in the fact that the Crown only wants the statements admitted for three basic things, all of which seem uncontroversial. The defence is still being deprived of any opportunity to cross-examine the witnesses, and I agree with Mr. Smith that cross-examination on the issue of the luxury automobiles would have been important. Where were they usually parked? For how long were they there? How often were they driven, and where to? Who drove them? And so on. The couple could have also been cross-examined about their dog, as a dog is referenced in certain messages found on the cellular telephone seized from Watson’s pocket at the time of his arrest.

[100] Finally, the Crown could have adduced other evidence on the race or ethnicity of the occupants of house 68. That evidence did not have to come from the hearsay statements. At the very least, the attending police officers could have testified at trial that the occupants of house 68 appeared to be Chinese or, if not that specific, Asian. And the Crown could have adduced other evidence about the luxury cars, from a neighbour for example.

[101] In summary, necessity has not been established. Reliability has not been established. To admit the hearsay evidence would send the wrong message to law enforcement about the value of interpretation for witnesses whose first language is obviously not English and be contrary to the administration of justice. And the evidence could have been presented in another way.

[102] The statements are, thus, inadmissible at trial.

VII. The Crown’s “Carter” Application

[103] At trial, the Crown brought an application to admit, for its truth, the content of some of the incoming electronic communications recovered by the police from Watson’s cellular telephone (when I refer to “Watson’s cellular telephone”, I mean only that the reference is to the item retrieved from Watson’s pocket when he was arrested; the Court appreciates and has not ignored the argument that someone else could have been operating that cellular telephone and sending and retrieving those messages).

[104] More than one basis for the admissibility of those messages was put forward by the Crown.

[105] The application was contested by the defence. The Court reserved its decision.

[106] For the reasons that follow, that application by the Crown is granted. The electronic communications in question that were extracted from Watson’s cellular telephone are admissible, more specifically, the incoming messages from “Ziven” or “Zin Zin” (believed to be the same person) are admissible as against Watson.

[107] In two recent decisions of the Court of Appeal for Ontario, the law as it relates to the co-conspirators’ exception to the hearsay rule, was neatly summarized. There is no material difference between the two decisions, but it is worthwhile referencing them both.

[108] In R. v. Buffone, 2021 ONCA 676, at paragraph 24, the three-step approach was described as follows (i) first consider whether the alleged conspiracy has been proved, (ii) then consider the probable membership in the conspiracy of each of the accused, (iii) and then determine whether the membership of each accused in the conspiracy has been proved beyond a reasonable doubt. R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; R. v. Dawkins, 2021 ONCA 113, at paragraphs 35-42.

[109] At the second step, only the acts and declarations of the individual accused can be considered. Buffone, supra, at paragraphs 27-28.

[110] At step three, the acts and declarations of others besides the accused can be used only if those acts and declarations of the others were made and done for the purpose of advancing the objective of the conspiracy. Buffone, supra, at paragraph 31.

[111] In R. v. Khan, 2022 ONCA 698, at paragraph 40, the Court reminded us of why the co-conspirators’ exception to the hearsay rule exists – to permit the trier of fact to rely on the acts and declarations made by someone other than the accused, the accused’s co-conspirator(s), in determining the guilt of the accused. R. v. Mapara, 2005 SCC 23, at paragraph 8.

[112] The first question to be asked is, has it been proven beyond a reasonable doubt, based on all of the evidence, that the conspiracy exists? Second, based only on the evidence directly admissible against the accused and excluding, for example, hearsay statements by alleged co-conspirators, has it been proven on a balance of probabilities that the accused was a member of that conspiracy? Third, and only if the first two steps are satisfied, based on all of the evidence including the acts and declarations of the co-conspirators in furtherance of the conspiracy, has the guilt of the accused (the accused’s membership in the conspiracy) been proven beyond a reasonable doubt? Khan, supra, at paragraph 40, citing Carter, supra, at page 947, and R. v. McGean, 2019 ONCA 604, at paragraph 6.

[113] What is a conspiracy? Simply put, it is an agreement between two or more persons to commit a criminal offence, each intending to achieve that criminal object. Canada (Attorney General) v. Lalonde, 2016 ONCA 923.

[114] The Crown’s position is that there was a conspiracy between, at a minimum, Watson and Ziven. Ziven was the orchestrator, the boss, the brains, the employer of the operation. Watson was the person below Ziven, like an employee, responsible for putting together the team(s) of muscle to do the jobs. The aim of the conspiracy was to target the homes of affluent Chinese individuals and rob them. Ziven would pay money to and give instructions to Watson.

[115] According to the Crown’s theory of the case, Matthews was one of the members of the team assembled by Watson. Matthews is the “white guy” referred to in some of the content of the communications found on Watson’s cellular telephone, the Crown submits.

[116] The defence position on the Crown’s application, as it relates to the co-conspirators’ exception to the hearsay rule, is that there is no one conspiracy here. What is the conspiracy, asks the defence. There is, more accurately, an ongoing criminal association between the person operating Watson’s cellular telephone and Ziven, an association that refers to numerous things including drug-running and Rolex watches, as just two examples unconnected with what the prosecution asserts to be the object of the alleged agreement, Mr. Smith submits.

[117] If there is no one conspiracy, then the Crown cannot prove that the messages in question were in furtherance of the conspiracy, the defence argues.

[118] The defence also submits that the hearsay evidence is not necessary as the identity of Ziven is known. That person is charged with offences originating in Scarborough and is currently before the court in another jurisdiction. Who says that he is unwilling to testify, asks the defence. There is no evidence on that point filed by the Crown on the application. Testimony from that person at trial would be superior to the quality of this proffered hearsay evidence, Mr. Smith submits.

[119] Apart from the co-conspirators’ exception to the hearsay rule, the other significant basis for the Crown’s application is that the electronic communications sent to the Watson cellular telephone by Ziven/Zin Zin are admissible under the second prong of what is known as the documents in possession rule, which constitutes an exception to the hearsay rule, on the basis that the incoming messages constitute admissions that were adopted by Watson.

[120] Just because a message is received on a cellular telephone, and read by the recipient, does not mean that it has been “adopted”. Something more is required to generate an exception to the presumptive rule of inadmissibility. What the court will look for is something that goes to the recipient having recognized, adopted (explicitly or implicitly), or acted upon the message that was received. There must be something that shows that the recipient, through words, actions, conduct, or demeanour, or otherwise, expressly or impliedly assented to the truth of the statement made by the out-of-court declarant. R. v. Bridgman, 2017 ONCA 940, at paragraphs 82 and 87-89; R. v. Robinson, 2014 ONCA 63, at paragraph 48, citing David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2013), at paragraph 36.04.

[121] The defence submits that the Crown’s argument is a stretch (my word). The prosecution wants the Court to engage in an entirely unwieldly exercise of going through scores and scores of messages and trying to decipher, each time, whether the recipient adopted by admission the content of the communication sent by Ziven or Zin Zin. That is unreasonable, submits Mr. Smith. The case is completely different than Bridgman, supra, where there was a select group of a few messages targeted by the prosecution, the defence argues.

[122] Also, the defence submits that, in many instances, it would not be safe to conclude from the content of the response to Ziven/Zin Zin that the recipient adopted the message by admission. For example, if the incoming message refers to both a van and a place, and the recipient says “ok”, does that mean admission by adoption of the incoming message in its entirety?

[123] Finally, the defence points out that Bridgman, supra included expert evidence about coded language, which evidence is absent in our case.

[124] Applying the governing legal principles to our case, I would grant the Crown’s application on both bases, the co-conspirators’ exception to the hearsay rule and the second prong of the documents in possession rule – the admission by adoption exception to the hearsay rule.

[125] With regard to the latter basis, though, only a few of the electronic communications in question are admissible.

[126] I wish to be very clear, also, that this Court is not sorting through the hundreds and hundreds of incoming messages found on Watson’s cellular telephone. Rather, the Court will focus only on some of the messages highlighted by the Crown, in the colour-coded chart that was filed and in the Crown’s PowerPoint presentation that formed a part of its submissions on both the application and on the trial proper.

[127] The defence is correct that the numerous messages between Ziven and the Watson cellular telephone include references to other potential illegal activity besides residential robberies. In my view, that is not fatal to the application.

[128] There is no jurisprudence that I am aware of that stands for the proposition that a court is precluded from finding the existence of a conspiracy to commit a criminal offence where the evidence discloses other unrelated criminal activity participated in by the members of the conspiracy. Nor can I see any policy reason or rationale for such a proposition.

[129] Justice Martin of the Court of Appeal for Ontario and Justice Cory of the Supreme Court of Canada have both addressed this issue.

[130] In Paterson, Ackworth and Kovach (1985), 1985 CanLII 167 (ON CA), affirmed by the Supreme Court of Canada in R. v. Ackworth, 1987 CanLII 22 (SCC), at pages 143-144, Justice Martin summarized some of the basic principles that are applicable to conspiracy cases. The following statement is relevant here: “[w]here the evidence establishes the conspiracy alleged against two or more accused (or against one accused and an unknown person where the indictment alleges the accused conspired together with persons unknown), it is immaterial that the evidence also discloses another and wider conspiracy to which the accused or some of them were also parties”.

[131] Those comments by Justice Martin were referenced approvingly by Justice Cory in R. v. Douglas, 1991 CanLII 81 (SCC), and in that case Justice Cory wrote, “[s]ince the sole issue in this case is to determine whether the prosecution proved the conspiracy alleged, the fact that the evidence established more than one conspiracy is not necessarily fatal to the prosecution”.

[132] In my view, the same applies in a case, as ours, where the indictment does not charge a conspiracy but the court, for some reason, has to decide whether a conspiracy existed.

[133] This Court also rejects the submission by the defence that the Crown’s application should fail because there is no evidence that Ziven is unwilling to testify. I find that the decision of Justice Hourigan for the Court of Appeal for Ontario in R. v. Magno, 2015 ONCA 111, leave to appeal to the Supreme Court of Canada dismissed, John Magno v. Her Majesty the Queen, 2015 CanLII 43080 (SCC), is instructive on this point.

[134] There are many cases where the principled approach to hearsay evidence, including the necessity criterion, is not applicable at all to the assessment of whether the type of hearsay evidence we are dealing with here should be admitted. In Magno, supra, the reason why the trial judge embarked upon the principled analysis was because it was found that the case was an exceptional one where there were serious concerns about the reliability of the evidence. Magno, supra, at paragraph 57.

[135] That is not our case. The incoming messages on the Watson cellular telephone were contemporaneous with the events and were sent and received at a time when the parties had no reason to think that their communications would end up in the hands of the authorities. Further, unlike the co-conspirator in Magno, supra, this Court is in no position to conclude that Ziven is “an inveterate liar” such that his statements, even those found on the Watson cellular telephone, may very well be unreliable.

[136] The question of leading a co-conspirator’s hearsay declaration when the witness is available to testify was discussed but not resolved in R. v. Chang (2003), 2003 CanLII 29135 (ON CA), at paragraphs 107 and 110, and Justice Blair in a subsequent decision stated that Chang, supra should not be interpreted as standing for the proposition that non-compellability is required to satisfy the necessity criterion. While the co-conspirator may be physically available, his or her testimony rarely is. Magno, supra, at paragraph 60, citing Justice Blair in R. v. N.Y., 2012 ONCA 745, at paragraph 78.

[137] Necessity has a flexible definition. It can be satisfied, regardless of whether the hearsay declarant is available and even willing to testify, where it cannot be expected that evidence of the same value will be available, as compared to the hearsay statements. Magno, supra, at paragraphs 61-62, citing R. v. Smith, 1992 CanLII 79 (SCC), at pages 933-934, and Chang, supra, at paragraph 105, and R. v. B. (K.G.), 1993 CanLII 116 (SCC), at page 798.

[138] In our case, by the defence’s own admission, the person who we know “Ziven” to be is facing his own criminal troubles in another jurisdiction. This Court rejects the notion that having him come to trial in Halton to testify about electronic communications that he had about three years ago would be any valuable substitute for, or nearly as reliable as, the actual contemporaneous messages, in writing, that we have before us.

[139] Turning now to the three-stage analysis for the co-conspirators’ exception to the hearsay rule, first, I conclude that the Crown has proven, beyond a reasonable doubt, that the alleged conspiracy existed.

[140] There was, indeed, an agreement between two or more persons, and specifically between Ziven and the operator of the Watson cellular telephone, to commit criminal offences, namely, home invasion-style robberies. I am sure of that.

[141] We know the following:

i. there were the two home invasions, the first in Oakville and the second in Scarborough;

ii. by September 2019, two months before the Oakville occurrence, there was a relationship between the operator of the Watson cellular telephone (“operator”) and Ziven, which relationship included the operator asking Ziven for money and the two of them meeting to exchange money (see the discussion at Exhibit 27G, beginning at message number 86);

iii. the said relationship included, at times, Ziven telling the operator that there was “business” to be done, and the operator stating that he had to find his “guys” to get it done (see the discussion at Exhibit 27G, beginning at message number 148);

iv. the said relationship also included, at times, the operator’s expectation to be paid by Ziven for a “job” that the operator did (see the discussion at Exhibit 27G, culminating at message number 657);

v. the said relationship included, further, a role for the operator to find persons of a certain ilk, like a “street fighter”, who can do anything they (Ziven and the operator) want (see the discussion at Exhibit 27G, at message numbers 729-731);

vi. in the two weeks before the Oakville occurrence, there were numerous messages between the operator and Ziven, which messages included the operator saying that he needed a car for an upcoming job that was worth $50,000.00 to $80,000.00 and would make Ziven happy (see the discussion at Exhibit 27G, beginning at message number 767);

vii. very shortly before the Oakville occurrence, more messages between the operator and Ziven referred to the operator needing to pick up a U-Haul (see the discussion at Exhibit 27G, and specifically message number 805);

viii. there is a video on the Watson cellular telephone of a drive-by of the precise Oakville home that was invaded, which home does not appear to have any benign connection to the operator;

ix. there are cellular telephone records that connect the operator to the location of the Oakville occurrence, and that also connect the operator to the location of where the stolen Honda Ridgeline was recovered, and that also connect the operator to Matthews (whose DNA matches that found on a swab of the crowbar used at the Oakville home);

x. very shortly after the Oakville occurrence, there were more messages between the operator and Ziven, including the operator saying “job done” (see the discussion at Exhibit 27G, and specifically message number 817);

xi. the day after the Oakville occurrence, the operator messaged a third party to say that he “did big job” (Exhibit 27G, page 47, the WeChat communication from the operator to “Damon”);

xii. very shortly after the Oakville occurrence, the U-Haul that had been referred to before the Oakville occurrence was referred to again in a discussion between the operator and Ziven (Exhibit 27G, specifically message number 821);

xiii. there is a video on the Watson cellular telephone of what appears to be cannabis in bags, and cannabis in sealed bags was stolen from the Oakville home;

xiv. during the hiatus between the date of the Oakville occurrence and the date of the Scarborough occurrence, electronic communications continued, regularly, between the operator and Ziven, and those messages included references to,

(a) “business” (Exhibit 27G, message number 908);

(b) the need to “prepare” (Exhibit 27G, message number 915);

(c) the need to find trusted persons to help (Exhibit 27G, message number 918);

(d) two guys who will do it for “2 grand each” (Exhibit 27G, message number 937);

(e) a “job” (Exhibit 27G, message number 944);

(f) the “plan” (Exhibit 27G, message number 949);

(g) “49 Jolly Way” (Exhibit 27G, message number 1047), which location is not far away from the Scarborough home that was invaded;

(h) the operator being in possession of a key for the lock at 49 Jolly Way (Exhibit 27G, message number 1052);

(i) the “team” (Exhibit 27G, message number 1064);

(j) the precise address of house 68 (Exhibit 27G, message number 1107);

(k) the need to be careful about police (Exhibit 27G, message number 1108);

(l) a van to be used to do the business (Exhibit 27G, message number 1115);

(m) the need to check the targeted house in advance (Exhibit 27G, message number 1120);

(n) the need to be aware of the presence of a dog (Exhibit 27G, message number 1135);

(o) the earlier “first job” that involved “ties and stuff like that” (Exhibit 27G, message number 1148);

(p) an older place with easy access in (Exhibit 27G, message number 1150);

(q) Ziven not wanting to meet the operator at Ziven’s home (Exhibit 27G, message number 1161);

(r) the need for black gloves and WD40 (Exhibit 27G, message number 1223);

(s) photos of a young Asian couple sent to the operator in late December 2019, which couple appears to have no other connection to either the operator or to Ziven;

(t) instructions from Ziven to the operator of what to do if the light is on inside the house (Exhibit 27G, message numbers 1289-1292);

(u) the plan for the rescheduling of the job (Exhibit 27G, message numbers 1373-1377);

(v) what would be a good place for “holding people” – a place with no window (Exhibit 27G, message numbers 1383-1394);

(w) the pick-up of pizza the night before the Scarborough occurrence at a specific address that is located fairly close to 49 Jolly Way and not far away from where the Scarborough occurrence took place (Exhibit 27G, message numbers 1470-1478);

(x) the operator requesting liquor for his guys the night before the Scarborough occurrence (Exhibit 27G, the discussion beginning at message number 1482);

(y) instructions from Ziven to the operator, in the early morning hours on the same date as the Scarborough occurrence, to pick up the van (Exhibit 27G, message number 1521); and

(z) the operator asking Ziven for the address again, just before the Scarborough occurrence (Exhibit 27G, message number 1525);

xv. there is a video on the Watson cellular telephone of a drive-by of the precise targeted home in Scarborough, which home does not appear to have any innocent connection to the operator;

xvi. there is a video on the Watson cellular telephone of some males inside a residence (Exhibit 27H, video number 5), and the black male with the eyeglasses and the backwards baseball cap resembles Watson (from my observations of the accused throughout the video trial), and the white male resembles Matthews (from my observations of the photograph of Matthews taken by the police at the time of his arrest), and Matthews’ DNA was found on items inside the Scarborough home that was invaded;

xvii. there is a video on the Watson cellular telephone (Exhibit 27H, video number 6) of a black male resembling Watson and a white male resembling Matthews together at the same spa-like place that was referred to by Ziven in a message to the operator on December 25, 2019 (Exhibit 27G, message number 1171);

xviii. there is a video on the Watson cellular telephone (Exhibit 27H, video number 7) of a black male resembling Watson and a white male resembling Matthews together inside a moving motor vehicle;

xix. there was a large number of telephone calls between the operator and Ziven in the hours leading up to the Scarborough occurrence (Exhibit 27G, beginning at message number 1453); and

xx. there was a large number of telephone calls between the operator and Ziven during the actual time of the break-in at house 64, when it appeared that the assailants had entered the wrong home, and there were also repeated messages at that same time where Ziven provided to the operator the specific address of house 68 (Exhibit 27G, at messages 1531-1554).

[142] Some of the above evidence does not relate directly to stage one of the Carter analysis but more to steps two and three.

[143] All of the important evidence has been set out in one place, however, because it is on the basis of all of the evidence that the Court must assess whether the Crown has proven beyond a reasonable doubt the existence of the alleged conspiracy.

[144] It has. In summary, (i) the repeated electronic communications between the Watson cellular telephone and Ziven (and in a few instances, Zin Zin, who this Court finds is the same person as Ziven) before the Oakville occurrence, after the Oakville occurrence, between the dates of the Oakville occurrence and the Scarborough occurrence, and at the actual time of the Scarborough occurrence, plus (ii) the content of those repeated electronic communications summarized in detail above, which content establishes the instructor-person being instructed relationship between the two of them and also establishes their mutual targeting of homes for criminal activity, plus (iii) the independent video evidence on the Watson cellular telephone, especially the two drive-bys in Oakville and Scarborough, which is not hearsay at all and which corroborates the object or design of the said relationship as being related to the two very homes that were broken-into by the assailants, in totality, proves the existence of an agreement between Ziven and the operator of the Watson cellular telephone to commit home invasion-style robberies.

[145] There is no reasonable doubt in that regard.

[146] At the second stage of the Carter analysis, considering only that evidence that is directly admissible against Watson, and specifically not considering any of the hearsay evidence from Ziven/Zin Zin or any other third party who did not testify at trial, has it been established on a balance of probabilities that Watson was a member of the said conspiracy?

[147] The answer is yes.

[148] Watson was arrested with a cellular telephone in his pocket. The arrest took place less than a month after the Scarborough occurrence. That cellular telephone is the one with the number 647-713-6611. That cellular telephone is the one containing all of the electronic communications and the video evidence referred to above. The subscriber, the person that the “phone number belongs to”, is Watson (Exhibit 1, paragraph 30, and Exhibit 16).

[149] Those facts, alone, all uncontroverted and all admissible directly against Watson, and without any regard for the hearsay declarations, demonstrate on a balance of probabilities that Watson was the operator of the cellular telephone during the material time and, consequently, a co-conspirator with Ziven.

[150] Moving to the third step of the Carter analysis, considering all of the evidence including the hearsay declarations that were made in furtherance of the conspiracy, has it been proven beyond a reasonable doubt that Watson was a member of the conspiracy?

[151] The answer is yes.

[152] This Court is sure that Watson was at all material times the operator of the cellular telephone that was seized from his pocket when he was arrested by the police, that is to say that he was the sender and receiver of the electronic communications summarized above. As such, it has been proven beyond a reasonable doubt that he was a member of the conspiracy with Ziven to commit home invasion-style robberies.

[153] The evidence is overwhelming. In addition to what was observed above in relation to steps one and two of the Carter analysis, we have the following.

[154] This Court has not been pointed to a single message on that cellular telephone, incoming or outgoing, that contains any content that would suggest in any way that it was being sent to or sent by someone other than the subscriber, the person that the “phone number belongs to”, and that is Watson (Exhibit 1, paragraph 30, and Exhibit 16). One would think that if the cellular telephone was being used by someone else we would see something, anything, in its content to suggest that. A reference in an outgoing message to having borrowed the telephone, for example. Or a reference in an outgoing message to Watson as a third person. Or a reference in an incoming message to Watson as a third person. Or photographs or videos that appear to have nothing to do with Watson and appear to be stored on the device for the benefit of someone else. These are just examples.

[155] It is simply unreasonable to infer that someone else could have been using the cellular telephone for several months, from at least September 2019 through to January 2020, all the while believing that the device would never end up in the hands of the police, and yet there not being a shred of a clue existing on the device itself to support that inference.

[156] I find that idea speculative and conjectural. It is not the type of thing that the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 had in mind when Justice Cromwell spoke about other plausible theories and other reasonable possibilities which are inconsistent with guilt (paragraph 37).

[157] In addition, why are there multiple videos on the device that show a black male who resembles Watson if Watson was not the user of the cellular telephone at the material time? The only other common denominator in the videos is Matthews, and we know from Exhibit 1 that Matthews had his own cellular telephone with his own number. There is no plausible answer to that question.

[158] For all of these reasons, the Crown’s application, on the basis of Carter, supra and the co-conspirators’ exception to the hearsay rule, is granted. All of the incoming messages from Ziven/Zin Zin found on the Watson cellular telephone are admissible at trial.

[159] To be clear, when the Court says “all” of the said incoming messages, I am referring only to those that are relevant – only to those that were clearly made in furtherance of the conspiracy between Watson and Ziven – those summarized above in these reasons.

[160] Further, a few of the electronic communications in question are also admissible on a separate legal basis, that being admission by adoption. Only a few, and only those that do not depend on any expert evidence about coded language.

[161] The first exchange is at Exhibit 27G, messages 818-824. Watson, very shortly after the Oakville occurrence, asks Ziven if he has a car that Watson can use until the next morning, and Ziven replies “yes”, and then Ziven states that Watson “can use that uhaul”, and Watson responds, “lol yea ur right but it’s not for business this one for personal…girl take out but thanks tho”.

[162] In my view, Watson clearly admitted, through the adoption of Ziven’s message about the U-Haul, that Watson was in fact in possession of a U-Haul that morning.

[163] That is relevant evidence against Watson because of the earlier discussion between the two about a U-Haul, that earlier discussion taking place shortly before the Oakville home invasion occurred, and because we know from Exhibit 1 that the security camera footage showed at least one white utility van which is believed to have been involved in the Oakville occurrence.

[164] The second exchange is at Exhibit 27G, messages 1510-1512. Ziven, in the late night before the Scarborough occurrence, tells Watson to “pick up the van at pt1, all the stuff in that van”, and Watson replies “ok”.

[165] In my view, Watson clearly admitted, through adoption, that what he was agreeing to (saying “ok” to) was the picking up of the van and its contents.

[166] That is relevant evidence against Watson because we know from Exhibit 1 that the security camera footage showed a white minivan which is believed to have been involved in the Scarborough home invasion.

[167] For these select messages, on the basis of the second prong of the documents in possession rule, that is the admission by adoption exception to the hearsay rule, the Court grants the Crown’s application to admit the said incoming declarations of Ziven as evidence against Watson.

[168] Why has the Court focussed on such few messages under this heading, when there are dozens of others that the Crown relies on under the same basis?

[169] There are two reasons for that – (i) given the Court’s ruling pertaining to the co-conspirators’ exception to the hearsay rule, the exercise on a line-by-line assessment of the admission by adoption argument is unnecessary, and (ii) the select messages that the Court has admitted under the second basis add something tangible to the overall analysis of the case on its merits; Watson’s personal possession of two motor vehicles that are connected to the two crime scenes is a piece of circumstantial evidence that is worthy of mention.

[170] Finally, before leaving this section of the within reasons, I wish to add that I would not have admitted any of the hearsay declarations from Ziven under any other legal basis besides the two analyzed above, and I certainly would not have admitted any of them under the guise of “context” or “narrative”, as those terms are used in the Crown’s application materials. Such expressions often suggest that the Crown cannot think of any other legitimate reason to get in what it wants in, and I would not have been persuaded to rely on either of those bases here.

VIII. A Discussion of Modes of Participation and Bases for Liability

[171] The theory of the Crown is that Watson is guilty of the offences regardless of whether he was one of the suspects inside either the Oakville or the Scarborough home.

[172] In answer to the Court’s question fairly early in the trial, the Crown indicated that, on its theory of the case, Watson was in the vicinity of both home invasions but not necessarily inside either residence. Later in the trial, the Crown stated that Watson was more than likely inside the Scarborough home during that incident.

[173] The Crown’s framework for the case is that Watson was part of a group of criminals who were targeting homes to be broken into and robbed. The “boss” was an unindicted co-conspirator, “Ziven”. Watson was below Ziven and was being paid by Ziven. Watson was in charge of assembling the teams of men together to attend at and break into the homes.

[174] Neither counsel spent any time at trial addressing the precise legal basis for Watson’s liability if in fact he was not inside either home. That is not meant as a criticism of these experienced counsel, but I would suggest that the prosecution ought to have paid more attention to that issue.

[175] It is true that the prosecution is not required to delineate in the indictment the legal basis for the accused’s liability, and it is also true that the Crown is not generally required to provide particulars of the accused’s mode of participation in the offence in question [R. v. Johnson, 2017 NSCA 64 and R. v. Hall (1984), 1984 CanLII 3573 (ON CA), 12 C.C.C. (3d) 93 (Ont. C.A.], but it is also true that the Crown can greatly assist the trier of fact in focussing on the most relevant evidence and in identifying what findings of fact are necessary to the analysis by tying its theory of the case to one or more legal bases for liability.

[176] There are various modes of participation set out in the Criminal Code – joint principals under section 21(1)(a), aiding under section 21(1)(b), abetting under section 21(1)(c), and common purpose under section 21(2).

[177] The actus reus and mens rea for aiding and abetting are distinct from those of the principal offence; the actus reus is doing something, or in some instances omitting to do something, that assists or encourages the perpetrator to commit the offence. The mens rea for aiding requires both knowledge and intent. The aider must have intended to help the principal commit the offence, and the aider must have known that the principal intended to commit the offence. The aider can only be found to have intended to assist the perpetrator to commit the offence if the aider knew the crime that the perpetrator intended to commit. R. v. Phillips, 2017 ONCA 752, at paragraphs 195 and 196; R. v. Briscoe, 2010 SCC 13, at paragraphs 13-14 and 16-17; R. v. Maciel, 2007 ONCA 196, at paragraph 88, leave to appeal to the Supreme Court of Canada refused, [2007] S.C.C.A. No. 258.

[178] Common purpose, section 21(2), is completely separate and distinct from party liability under section 21(1). The real objective of section 21(2) is to extend liability to those who would otherwise not be captured by section 21(1). The offence to which section 21(2) extends liability is not the original “unlawful purpose” referred to in the provision but rather a different crime – one that a participant in the original “unlawful purpose” commits in carrying out that original “unlawful purpose”. Liability under section 21(2) requires three things: agreement, offence, and knowledge. Phillips, supra, at paragraphs 220-222; R. v. Simon, 2010 ONCA 754, at paragraphs 42-43, leave to appeal to the Supreme Court of Canada refused, [2010] S.C.C.A. No. 459; R. v. Cadeddu, 2013 ONCA 729, at paragraphs 56-62.

[179] The mens rea for liability under section 21(2) consists of the formation of an intention in common, an intention to assist, and knowledge that the principal offender would probably commit the offence in question. Phillips, supra, at paragraph 224; R. v. Ferrari, 2012 ONCA 399, at paragraph 62; R. v. Jackson (1991), 1991 CanLII 11739 (ON CA), 68 C.C.C. (3d) 385 (Ont. C.A.), at page 424.

[180] In some cases, including where two or more persons are alleged to have been involved in the commission of an offence but only one of them is before the court and on trial, and where in addition to that there is no direct evidence as to the role played by each when the offence was actually committed nor of the intent of the other perpetrator(s) not before the court and on trial, it may not be necessary for the Crown to prove who the principal was or the precise role played by each participant in order to establish the guilt of the accused before the court as a party to the offence. R. v. Johnson, 2022 ONCA 534, at paragraphs 53-55 of the majority opinion; R. v. Cowan, 2021 SCC 45, at paragraph 31; R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.), at page 458; R. v. Isaac, 1984 CanLII 130 (SCC), [1984] 1 S.C.R. 74, at page 81.

[181] Co-principal liability is different than aiding or abetting. And it is different than liability under section 21(2). Where there is evidence that multiple people acted in concert, with a common motive among them, to commit an offence, a finding of guilt could be made either as a co-principal or as an aider or abettor even if the extent of the individual participation of the accused in the commission of the offence is unclear. Johnson, supra, at paragraph 62 of the majority opinion; R. v. Wood (1989), 1989 CanLII 7193 (ON CA), 51 C.C.C. (3d) 201 (Ont. C.A.), at page 220, leave to appeal to the Supreme Court of Canada refused, [1990] S.C.C.A. No. 73.

[182] Co-principal liability is where two or more persons actually commit an offence. In other words, they are actually present at the commission of the offence and contribute to it in some way that is short of having committed all of its essential elements. There must also be a common intention to commit the offence. Johnson, supra, at paragraph 63 of the majority opinion; R. v. Kennedy, 2016 ONCA 879, at paragraph 23; R. v. Spackman, 2012 ONCA 905, at paragraph 181; R. v. Pickton, 2010 SCC 32, at paragraph 63.

[183] Sometimes, the expressions “joint endeavour” or “joint enterprise” or “joint plan” are used in connection with co-principal liability. Johnson, supra, at paragraphs 65-66 of the majority opinion; Watt’s Manual of Criminal Jury Instructions (2005 edition), by David Watt, at page 252.

[184] In some cases, depending on the circumstances, such as where there is evidence that two or more persons participated jointly in the execution of an offence (as opposed to what precipitated and/or followed the actual commission of the crime), there is little practical difference between co-principal liability and aiding or abetting. Johnson, supra, at paragraph 73 of the majority opinion.

[185] But, as was pointed out by Justice Nordheimer who wrote the dissenting opinion in Johnson, supra, co-principal liability is a different route to liability than is aiding or abetting (paragraphs 97-98 and 100).

[186] I agree with that, and I would add that I also agree with the sentiments advanced throughout the reasons of Justice Nordheimer to the effect that it may very well be an error for the trier of fact, or the judge who instructs the triers of fact, to confuse the two.

[187] That is why I would suggest, with respect, that prosecutors in criminal cases, where appropriate, delineate for the trier of fact the legal basis for the accused’s criminal responsibility, with reference to the modes of participation and section 21 of the Criminal Code. Of course, in many instances it will be clear from the facts of the case, and most often liability is premised on the accused having actually committed the offence as the direct perpetrator.

[188] With that background discussion on the governing legal principles in mind, it seems to this Court that the Crown cannot be relying upon section 21(2) as a route to liability for Watson. There is simply no air of reality to any theory that Watson is liable for the commission of some other unspecified offence that he knew or ought to have known would be a probable consequence of carrying out the original common unlawful purpose.

[189] It seems as well that the Crown cannot be relying upon section 21(1)(c). Abetting has always been viewed in the jurisprudence as being distinct from aiding; at its core, abetting means to encourage. R. v. Meston (1975), 1975 CanLII 1449 (ON CA), 28 C.C.C. (2d) 497 (Ont. C.A.). On the Crown’s theory of the case, Watson did a lot more than merely encourage others to commit these offences.

[190] Thus, this Court takes the view that there are two bases for liability of Watson that may fairly be considered – (i) as a joint or co-principal [21(1)(a)] and (ii) as an aider [21(1)(b)].

IX. Whether the Crown has Proven the Case Beyond a Reasonable Doubt

[191] At this stage of the within reasons, almost all of the Court’s work has already been done. That is the natural consequence of the Court having already discussed the evidence in relation to the rulings on the similar fact evidence application and on the “Carter” application.

[192] The case has been proven beyond a reasonable doubt. The only contested issue is identity, and the Court is sure that Watson was one of the persons criminally responsible for the offences charged.

[193] The defence is correct that this is a circumstantial case. There is no DNA evidence against Watson. There is no eye-witness evidence against Watson. There is no confession from Watson.

[194] The circumstantial evidence, however, is plentiful and strong. It amounts to a formidable case against Watson on the issue of identity, in fact a case stronger than what would have resulted from any identification evidence that may have come from any of the victims of the two home invasions.

[195] I cannot safely find as a fact that Watson was inside the Oakville home. But, on all of the evidence, I find that, at a minimum,

i. Watson conspired with Ziven to commit that home invasion;

ii. Watson was in possession of a U-Haul or utility van that was used by the assailants in the commission of that home invasion;

iii. Watson assembled the team of assailants who were inside the home; and

iv. Watson was in the close area of the Oakville home at the time of the occurrence and also in the close area of the location of where the stolen Honda Ridgeline was recovered at the time that it was ditched there.

[196] This is a case where the Oakville home invasion was a joint enterprise between Watson and Ziven. Watson was present at the scene of the commission of the offences in Oakville, although perhaps not inside the home. His team was there, including his friend Matthews. He contributed to the commission of the offences in more than just a preparatory manner. He shared a common intention to commit the offences.

[197] The most appropriate route to criminal liability for Watson, therefore, is as a co-principal, and this Court’s verdicts are on that basis.

[198] I can safely conclude that Watson was actually inside the Scarborough home. I find that he was the male who was speaking on the telephone with Ziven and explaining that they had the wrong house. In addition to being inside the house when the offences were committed, at a minimum, (i) Watson conspired with Ziven to commit that home invasion; (ii) Watson was in possession of a van that was used by the assailants in the commission of that home invasion; and (iii) Watson assembled the rest of the team of assailants who were inside the home.

[199] Like the Oakville occurrence, the Scarborough home invasion was a joint enterprise between Watson and Ziven. Watson was present at the scene of the crimes. The rest of his team was there, including his friend Matthews. He contributed to the commission of the offences in more than just a planning manner. He shared a common intention to commit the offences.

[200] Again, the most appropriate route to criminal liability for Watson, therefore, is as a co-principal, and the verdicts are on that basis.

[201] This case is completely different, factually, from that in R. v. Aslami, 2021 ONCA 249, relied upon by the defence. On the facts that were present in Aslami, supra, I am not at all surprised that Justice Nordheimer expressed serious concerns about the lack of expert evidence concerning the text and other electronic messages in question and some bewilderment (my word, not His Honour’s) at how the trial judge could have safely determined that the messages were in fact connected to the accused.

[202] The same reliability concerns are not present in our case. The need for expert evidence does not arise in our case. In fact, it should be noted by the reader that this Court has not made any findings about certain aspects of the electronic evidence that the defence has argued would require expert evidence, because those findings are unnecessary to the result.

[203] For example, Mr. Smith submitted that the Crown’s arguments about metadata and where and when a video was taken, for example, are unsupported by any evidence and cannot just be assumed to be correct by the Court. There is merit to that submission.

[204] I have made no such findings. They are unnecessary. Does it really matter how soon before the Oakville home invasion the drive-by video of the exact house that was broken-into was taken, for instance? Or whether it was taken by that cellular telephone? No, it does not matter. That the video was on Watson’s device at all is the point.

[205] Quite unlike what was presented in Aslami, supra, there is no risk that this Court has been misled into assuming the integrity of the electronic communications at hand, and what it all means, in the absence of proper evidence to establish the same. There is no risk that this Court has gone down a road of, for example, drawing a connection between Watson and the messages through some amorphous assessment of the “tone” of the messages. There is no risk that this Court is placing too much emphasis on the assertions of a partial witness who points the finger at Watson as being the person who sent and received the messages in question.

X. The Verdicts

[206] For all of the aforementioned reasons, the verdicts of the Court are as follows:

count 1 – guilty, but on the basis of break and enter a residence and commit robbery (not robbery with a firearm), given the Crown’s concession that it cannot prove that the firearm used at Oakville was real;

count 2 – guilty of the lesser and included offence of robbery simpliciter, given the Crown’s concession noted immediately above;

count 4 - guilty; and

count 7 - guilty.

[207] This Court is grateful for the assistance and professionalism of both counsel, Mr. Godinho and Mr. Smith.

Conlan J.

Released: November 17, 2022

COURT FILE NO.: CR-21-53

DATE: 2022 11 17

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Jermaine Watson

REASONS FOR JUDGMENT

Conlan J.

Released: November 17, 2022