R. v. Sinclair, 2024 ONSC 1154

COURT FILE NO.: CR-24-70000318 DATE: 20240226

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JAHLANDO SINCLAIR

Counsel: David Mitchell and Kaely Hebert, for the Crown Mitchell Chernovsky, for Jahlando Sinclair

HEARD: May 8-10, June 1 and 29, August 24 & November 20, 2023

REASONS FOR JUDGMENT

Garton J.

1The accused, Jahlando Sinclair, age 22, is facing charges in relation to the robbery of two pharmacies on the afternoon of November 21, 2020. Both robberies were captured by high-quality video surveillance cameras.

2The videos show that the same four males entered both pharmacies and carried out the robberies while a fifth male remained outside in the getaway car – a 2012 silver Tiguan (the Tiguan), which was stolen sometime between November 14 and 16, 2020. The central issue in this case is whether the Crown has established beyond a reasonable doubt that Mr. Sinclair was the robber wearing a grey zip-up Roots hoodie during the robberies.

3The other four robbers have all been identified and have pleaded guilty to the robberies. Two of the robbers were young offenders, one of whom acted as the get-away driver and remained in the Tiguan. The other young offender entered the pharmacies with the three adult robbers. One of those robbers was Jesse Beckles, who was identified by his clothing and also by the GPS electronic monitoring anklet that he was wearing, which placed him at the scene of both robberies. A fourth robber, Mahad Omar Mohamed, was wearing the same clothes at the time of his arrest that he wore during the robberies, the last of which was committed less than an hour prior to his arrest.

4An extensive Agreed Statement of Fact was filed as an exhibit. Detective Constable Kirk Strilec was the only witness called by the Crown. Mr. Sinclair did not testify or call any evidence.

The First Robbery: The IDA Pharmacy at 1801 Eglinton Avenue West, Toronto

5On Saturday, November 21, 2020, at approximately 3:25 p.m., three males and the two young offenders arrived in the stolen Tiguan at the IDA pharmacy at 1801 Eglinton Avenue West. The young person driving the Tiguan remained in the vehicle with the engine running while the other four males got out and entered the store. The complainant, Enaiatreza Daneshvari, who owns the pharmacy, described the four suspects as follows:

i) Suspect #1: male Black in his teens, 5 feet 10 inches to 6 feet tall, thin build, wearing a black/grey hooded sweater, black pants, blue surgical mask, dark gloves, and carrying an orange-coloured bag.

The video footage shows that this robber, whom the Crown alleges was Mr. Sinclair, was wearing a grey Roots zip-up hoodie. Mr. Sinclair was 19 years old at the time of the robberies.

The video reveals a further detail regarding this robber’s clothing: during the robbery, he leapt over the store counter, at which point his pants slipped partway down, exposing his underwear, which was grey with a darker-coloured waistband. His underwear is also partly visible at other times during the video footage.

During the robbery of the second pharmacy, the Main Drug Mart, this same robber leapt over the counter near the entrance of the store seconds after his entry. Prior to exiting, he leapt over the counter again, but at the other end of the store. On both occasions, his pants slipped down, exposing his grey underwear and the darker-coloured waistband: see Main Drug Mart video – “Behind Counter”, at 16:51:29. There are also other times during this robbery where his underwear is visible.

ii) Suspect #2: male Black in his teens, 5 feet 10 inches to 6 feet tall, medium build, wearing a black, grey, and blue-coloured puffy Nike jacket, blue surgical mask, and dark gloves.

This describes the young offender who entered the store with Mr. Beckles, Mr. Mohamed, and the robber wearing the grey Roots hoodie.

iii) Suspects #3 and #4: Mr. Daneshvari described both of these robbers in the same way – that is, male Black, in their teens, 5 feet 10 inches to 6 feet tall, thin build, wearing a grey sweater with a hood, black pants, dark surgical mask, and dark gloves.

6During the robbery of the IDA Pharmacy, Mr. Daneshvari was struck in the face four or five times by two of the perpetrators, one of whom was the male wearing the grey Roots hoodie. Mr. Daneshvari suffered an injury to his mouth and his glasses fell to the floor and broke. The robber in the grey Roots hoodie struck Mr. Daneshvari using a red and black duffle bag that he carried into the pharmacy.

7The males demanded Percocet but left quickly before obtaining anything and fled to the waiting Tiguan, which then sped away.

8No firearm was seen during this robbery.

9Mr. Sinclair is charged in the indictment with the following offences with respect to the robbery of the IDA pharmacy:

Count 3 – Robbery, contrary to s. 343; and Count 4 – Having his face masked by means of a surgical mask with intent to commit an indictable offence, contrary to s. 351(2).

The Second Robbery: The Main Drug Mart at 1180 Victoria Park Avenue, Toronto

10The second robbery took place about an hour and a half after the first robbery. The facts of that offence are as follows.

11On November 21, 2020, at 4:53 p.m., the Toronto Police received a call reporting a robbery at the Main Drug Mart, located at 1180 Victoria Park Avenue in East York. The caller indicated that there were 4 to 5 suspects involved, all of whom were described as male, Black, and between 15 to 20 years of age. The perpetrators demanded Percocet. They ended up taking approximately $1,900 and a phone before fleeing the store and returning to the waiting Tiguan, which then sped away.

12The three complainants – Laxmi Basnet, Mervat Awadalla, and Josie Mediana – are employees of the pharmacy. The video footage shows that during the robbery, Mr. Mohamed pulled out a gun from the right side of his pants and aimed it at the pharmacist, Ms. Awadalla, and an employee, who were behind the counter. The robber in the grey Roots hoodie and the robber wearing a black/blue/grey jacket, later identified as a young offender, were attempting to maintain control over the pharmacist and an employee. At one point, the employee tried to walk away, but the robber in the Roots hoodie went after her and brought her back to the area behind the counter where the cash register was located. It is apparent from their gesturing and pointing to the cash register that the robber in the Roots hoodie and the young offender were trying to get the women to open the register. Mr. Mohamed, who was on the other side of the counter, then leapt over it while holding the gun. He continued to hold the gun as he approached Ms. Awadalla and the employee, and struck the 55-year-old pharmacist in the head with it. Mr. Mohamed is also seen pointing to the cash register with his right hand while holding the gun. The employee ultimately opened the register, and the young offender removed the money. The robber in the grey Roots hoodie leapt back over the counter into the main part of the store while holding a phone in his hand. The four robbers then fled the scene.

13Ms. Awadalla complained of a severe headache a couple of hours later and attended a hospital, where she underwent a CT scan. Doctors advised her that several spots on her brain indicated bleeding. She remained in the hospital for two nights as a result of this injury.

14Mr. Sinclair is charged with the following offences with respect to this robbery:

Count 1: Robbery while armed with a firearm, contrary to s. 344(1)(a); Count 2: Having his face masked by means of a surgical mask with intent to commit an indictable offence, contrary to s. 351(2); Count 5: Possession of a loaded restricted firearm, namely a handgun, contrary to s. 95(1); Count 9: Possession of a firearm, namely a handgun, while prohibited from doing so by reason of an order made by the Ontario Court of Justice on March 11, 2020, under s.51 of the Youth Criminal Justice Act, contrary to s. 117.01(1) of the Criminal Code; and Count 10: Possession of a firearm, namely a handgun, while prohibited from doing so by reason of an order made by the Ontario Court of Justice on March 15, 2019, under s.51 of the Youth Criminal Justice Act, contrary to s. 117.01(1) of the Criminal Code.

The Investigation

15On November 21, 2020, at 5:22 p.m., which was about half an hour after the police received the call reporting the second robbery, Police Constables Turczn and Onkin located the Tiguan, which had been abandoned at the rear of 967 O’Connor Drive in East York.

16Numerous officers from 55 Division began searching for suspects in the vicinity of 1180 Victoria Park Avenue. The police also seized surveillance videos from the building and surrounding area.

17The video surveillance shows that the Tiguan arrived at the parking lot behind 967 O’Connor Drive at 4:59 p.m., which was about six minutes after the Main Drug Mart robbery. All five robbers exited the vehicle and are seen moving in and around it and in the vicinity of the building. They appear to be removing various items from the Tiguan.

18The view of the robbers in the “Tiguan” footage is limited by virtue of the angle of the camera in the parking lot. However, the robbers can be distinguished from each other by their shoes and clothing: see Exhibit 1, Tab 5B, which is a video chronology created by P.C. Zvezdonkin and which contains a series of still photographs developed from the surveillance footage of cameras in the area. The stills, when viewed on the computer screen, are clearer and not as dark as the hard copies.

19Officer Zvezdonkin circled the shoes of each robber in a different colour in the stills in order to identify them. The robber wearing the grey Roots hoodie was wearing all-black shoes with black laces and silver tabs, which Officer Zvezdonkin circled in purple. I will refer to that individual from this point onward as the perpetrator.

20The video footage, at 17:05:28 (video time, which was six minutes ahead of the actual time), shows the perpetrator approaching the front passenger door of the Tiguan while holding a black or dark-coloured bag, possibly a garbage bag, under his right arm. After opening the front passenger door, he crouched down and leaned into the car for a few seconds. His arms were moving, but it is not possible to see what he was doing or if he was putting items into the bag. At 17:05:41, he stood up and walked toward the back of the car. He was still carrying the black bag under his right arm.

21The first robber to leave the lot where the Tiguan was parked was the young offender who had acted as the getaway driver. He is clearly distinguishable from the other robbers because he was the only one wearing shorts. The still developed from the surveillance footage at 17:05:32 (video time) shows him at the corner of Gardens Crescent and O’Connor Drive, which was just around the corner from where the Tiguan was parked. He was carrying a bag. He walked a short distance on the east side of O’Connor before crossing to the west side of the street. He then continued north toward 990 O’Connor, at which point he entered an alleyway adjacent to 990 O’Connor and disappeared from the camera’s view.

22A couple of minutes later, at 17:07:27 (video time), the perpetrator and the young offender wearing the black/blue/grey jacket rounded the corner of Gardens Crescent and O’Connor Drive. The perpetrator was not carrying anything at that time. However, the young offender was carrying a dark or black bag, possibly a garbage bag, which appears to be very similar to the bag that the perpetrator had been carrying just a couple of minutes earlier when he was at the front passenger door of the Tiguan. The young offender in the black/blue/grey jacket was also carrying what appears to be the red and black duffel bag that the perpetrator carried during the first robbery and that Mr. Beckles carried during the second robbery.

23The young offender in the black/blue/grey jacket stopped momentarily and held out what appears to be a cell phone to the perpetrator. The perpetrator did not take the phone from the young offender. The two of them then continued walking side-by-side for a few steps before turning around to wait for Mr. Beckles and Mr. Mohamed to catch up. Mr. Beckles was carrying a bag in his right hand. Mr. Mohamed was not carrying anything. When the young offender held out the object that appears to be a cell phone to Mr. Beckles, Mr. Beckles took it in his left hand.

24The four robbers then hurriedly followed the same route taken just a few minutes earlier by the young offender wearing shorts – they walked a short distance along O’Connor on the east side of the street before crossing to the west side. They then continued north on O’Connor until they reached 990 O’Connor Drive, where they disappeared from view as they headed into the alleyway between 990 and 994 O’Connor Drive.

25A couple of minutes later, Mr. Beckles and the youth who was wearing shorts returned to the Tiguan in the parking lot behind 967 O’Connor Drive. Still photographs developed from the video show them crossing from the west to the east side of O’Connor on their way back to the car. After reaching the Tiguan, they are seen at the rear passenger and front passenger side doors. A minute or so later, when they were returning to the alleyway between 990 and 994 O’Connor Drive, they crossed paths with the young offender in the black/blue/grey Nike jacket. He waved to them and continued on his way to the Tiguan.

26The young offender in shorts and Mr. Beckles re-entered the alleyway at 17:10:25 (video time). A couple of minutes later, the other young offender, having returned from the parking lot behind 967 O’Connor, also re-entered the alleyway.

The Arrests of Mr. Sinclair, Mr. Mohamed, and Mr. Beckles

27The buildings at 990, 994, and 996 O’Connor Drive are low-rise residential apartment buildings with three floors, including a basement. The police were aware that drug trafficking often takes place at these apartment complexes. There are a number of residential units in the area.

28At 5:29 p.m., Police Constables Lymer and McCarroll, who were searching the area near 967 O’Connor Drive, saw three Black males enter the back seat of a black Mercedes sedan that was parked outside 996 O’Connor Drive and within a block of the Tiguan. The officers believed that the three males, all of whom were wearing masks, matched the descriptions of the suspects.

29Video surveillance footage shows the three males exiting 996 O’Connor Drive at 5:29 p.m. and getting into the Mercedes.

30At 5:29 p.m., Officers Lymer and McCarroll pulled in front of the Mercedes and initiated a vehicle stop. The driver, Amit Sukhwami, advised that he was a Lyft driver and was picking up a fare in front of 996 O’Connor Drive. The officers told the three males in the back seat that there had been a robbery in the area, that they matched the descriptions of the suspects, and that they were being detained for investigative purposes. When asked to identify themselves, the three males were co-operative and verbally identified themselves as Omar Mohamed, Jesse Beckles, and Jahlando Sinclair.

31While the officers were speaking to the three males, Mr. Sukhwami advised that he was not comfortable with the situation and wanted to cancel the fare. The three passengers then exited the vehicle and were directed to stand on the sidewalk while the officers continued to verify their identification. While at the side of the road, Mr. Beckles told Officer Lymer that he was wearing a GPS ankle monitor.

32As this was taking place, more officers arrived on scene, including Police Constables Ahmed, El-Halabi, Lam, and Cheng, as well as Detective Constables Fullard and Jeffery.

33The black Mercedes began to pull away but was quickly stopped by Officer Ahmed so that he could check the back seat of the vehicle. As soon as he opened the rear door, he saw a black handgun on the transmission tunnel hump in the rear of the vehicle. He immediately yelled “Gun!” and remained with the firearm.

34At 5:43 p.m., other officers, upon hearing Officer Ahmed yelling “gun,” placed all three males under arrest for unauthorized possession of a firearm. The males were formally identified as: i) Jesse Beckles, DOB February 15, 2001; ii) Jahlando Sinclair, DOB August 8, 2001; and iii) Mahad Mohamed, DOB June 25, 2000.

35Mr. Sukhwami advised that he had checked the rear of his vehicle before his last fare and that there was no firearm present at that time. He also provided the police with dash cam video that captured his interactions with the three accused.

36The firearm recovered by the police was a Heckler & Koch P301 9 mm semi-automatic handgun, with a barrel length of 113 mm, which is a functioning restricted firearm as defined by the Criminal Code. It appears to be the same firearm used during the robbery of the Main Drug Mart at 1180 Victoria Park Avenue. Pursuant to the Agreed Statement of Fact, Mr. Mohamad had physical possession of this firearm during that robbery and while he was in the Mercedes before he abandoned it in the vehicle. The firearm was loaded with 10 cartridges of 9 mm calibre centre-fire ammunition when seized by police. There was one round in the chamber. The serial number on the firearm had been obliterated.

37Neither Mr. Sinclair, Mr. Mohamed, nor Mr. Beckles had a registration certificate for any firearm, nor a licence to legally own or possess any firearm.

38The police also recovered 11 cartridges of .223 calibre centre-fire ammunition from the Tiguan. All the cartridges are “ammunition” as defined in s. 84 of the Criminal Code.

39Neither Mr. Sinclair’s fingerprints nor his DNA were found in the Tiguan.

40The video surveillance shows that the four robbers who entered the pharmacies were all wearing gloves.

Clothes Found During Search of Unit 203 at 996 O’Connor Drive, Toronto

41When Officers Fullard and Jeffery entered 996 O’Connor Drive to canvas for videos, they noticed that the door to Unit 203 was ajar. At 6:25 p.m., after receiving information that a lone female occupied that unit and that there had been a loud banging on her door about 30 minutes earlier, the officers pushed the door open and observed a black/blue/grey-coloured jacket similar to the jacket worn by one of the robbers.

42The police cleared the unit and froze it until a search warrant could be obtained. However, prior to the issuing of the warrant, the resident of the unit returned home and gave the police permission to search her apartment. The police entered the unit at 12:20 a.m. and observed the following items:

i) a grey Roots zip-up hoodie; ii) a pair of black jeans; iii) a red and black bag; iv) a black/blue/grey Nike Jacket; and v) blue Jordan sneakers

43These items were photographed and, with the exception of the black jeans, were seized by the police. The clothing appears to match the clothing worn by some of the robbers.

44The red and black duffle bag is the same design and colour as the bag used by the perpetrator to strike the pharmacist during the IDA robbery. Mr. Beckles is seen carrying what appears to be the same duffle bag into the Main Drug Mart. He continued to carry it during that robbery.

45The grey Roots hoodie appears to be identical to the grey Roots hoodie worn by the perpetrator during both robberies. The logo is in exactly the same location on the chest.

46The black/blue/grey Nike jacket appears to be the jacket worn by the young offender who entered the pharmacies with the other three males.

47The blue or turquoise Jordan sneakers appear to match the shoes worn by the young offender who acted as the get-away driver.

48Although the police photographed the black jeans, they did not seize them. Later on, after realizing that the robber wearing the grey Roots hoodie was also described as having worn black jeans, they returned to Unit 203 with the intention of seizing them. However, by that time the tenant had removed everything and thrown out the jeans.

49DNA from at least three people, including at least one male, was detected on the grey Roots hoodie. However, only one DNA profile could be developed. Mr. Sinclair was excluded from that profile. There was insufficient DNA to develop any other profiles.

Other Items Seized

50The videos show that the robber wearing the grey zip-up Roots hoodie during both robberies also wore all-black shoes with black laces, black soles, and a silver tab on each shoe.

51At the time of his arrest, Mr. Sinclair was wearing Nike “AF 1” sneakers, which is a popular brand and style. “AF 1” stands for Air Force One. Mr. Sinclair’s shoes, like those of the perpetrator, were all black, including the laces and soles.

52Air Force 1 shoes are often sold with a tab on the laces. The tabs on Mr. Sinclair’s shoes were silver, like those on the shoes of the perpetrator. The placement of the tabs on Mr. Sinclair’s shoes was identical to the placement of the tabs on the perpetrator’s shoes. During the booking process, the police seized the tabs from Mr. Sinclair’s shoes, as well as a black Covid mask. They later seized his black shoes pursuant to a search warrant.

53As stated earlier, the videos show that the perpetrator wearing the Roots hoodie was also wearing grey underwear with a darker-coloured waistband. During both robberies, his pants slipped down as he jumped over a counter, exposing his underwear and the darker-coloured waistband. During the booking process, it became apparent that Mr. Sinclair was wearing what appears to be a similar shade of grey underwear with a darker-coloured waistband on that day.

54At the time of his arrest, Mr. Sinclair was wearing a blue surgical face mask like the mask worn by the robber wearing the grey Roots hoodie.

55None of the surveillance videos depict any of the robbers wearing the camouflage outfit and puffy black vest that Mr. Sinclair was wearing at the time of his arrest. The position of the Crown is that Mr. Sinclair was the robber wearing the Roots hoodie and that he left the hoodie and black jeans in Unit 203 at 296 O’Connor, where he changed his outer clothing but did not change his shoes or underwear.

56Mr. Sinclair’s address at the time of the robberies was 3 Birchlea Avenue, which is in Etobicoke. The apartment building at 296 O’Connor Drive is in East York, which is at least 25 kilometres from Mr. Sinclair’s home.

57The robbers stole approximately $1,900 from the Main Drug Mart. During the booking process, which was videotaped, the police seized $327.10 from Mr. Sinclair, which consisted of the following: 11 x $20 bills; 18 x $5 bills; 1 x $2; 12 x $1; 10 x $0.25; 5 x $0.10; and 2 x $0.05.

58At the time of his arrest, Mr. Beckles had $400 on his person: 20 x $20 bills.

59Mr. Mohamed, who was armed with the firearm during the second robbery, had $600 on his person: 30 x $20 bills.

60The cash found on the three adult males totaled $1,327.10.

61The two young offenders were not arrested until three days later, on November 24, 2020. It is therefore not known how much money they may have received from the robberies. Both young offenders pleaded guilty to the robberies on August 30, 2021.

Relevant Legal Principles

The Surveillance Footage

62The Crown relies on the surveillance videos of the robbers as they entered the pharmacies, carried out the robberies, and exited the premises, as well as the booking video of Mr. Sinclair, all of which are of high quality. The Crown also relies on still photographs developed from the videos. The Crown asserts that the person wearing the grey Roots hoodie, the blue face mask, grey underwear with a darker-coloured waistband, and all-black shoes with silver tabs and black laces is Mr. Sinclair.

63Other surveillance videos show: i) the robbers exiting the Tiguan before the IDA robbery and returning to it after the robbery; ii) the robbers exiting the Tiguan after parking it behind 957 O’Connor Drive following the robbery of the Main Drug Mart; iii) the robbers walking to the alleyway between 990 and 994 O’Connor Drive; and iv) Mr. Sinclair, Mr. Beckles, and Mr. Mohamed exiting 996 O’Connor Drive together and entering the Mercedes that awaited them outside the apartment building.

64The video from the Mercedes shows the interaction of Mr. Sinclair, Mr. Beckles, and Mr. Mohamad with the police. It also captured Mr. Mohamed ridding himself of the loaded firearm before exiting the Mercedes.

65In R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 28, the Supreme Court recognized that high quality video surveillance can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. In the present case, the court can obviously observe and compare the surveillance videos and photographs developed from them with the known photographs and videos of Mr. Sinclair. Pursuant to Nikolovski, the court can also compare them to Mr. Sinclair as he now appears before me.

66However, it is important to bear in mind that identification evidence is notoriously dangerous evidence. In assessing the evidence in this case, I bear in mind that Mr. Sinclair is not only a stranger to me, but he is also of a different race. As noted by Justice Roberts in R. v. Fogah-Pierre, 2023 ONSC 2032, at para. 11, cross-racial identification may be particularly difficult and unreliable.

Resemblance Evidence

67I also bear in mind that resemblance is not identification. In addition, regardless of the number of similar characteristics between the robber in the grey Roots hoodie and Mr. Sinclair, if there is a clear dissimilarity and no supporting evidence, there is no identification. It is also dangerous to act on identification evidence alone.

68In terms of “resemblance evidence,” the Court of Appeal in R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58, at para. 121, stated:

As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution’s proof: R. v. Boucher, (2000), 146 C.C.C. (3d) 52, at para. 19 (Ont. C.A.) It simply goes too far to say that evidence of a resemblance is of no value in identifying the person responsible for certain conduct.

69In R. v. John, 2010 ONSC 6085, the accused was charged with attempting to murder the victim by shooting him. The incident was captured on video. At paras. 15-16, Code J., citing Rybak, stated that the law is clear that evidence of a “resemblance”, established pursuant to the rule in Nikolovski, can be considered by the trier of fact together with other evidence of identification in determining whether the Crown has proved its case. Consequently, after finding that there was a resemblance between Mr. John and the gunman seen in the video, Code J. found that the resemblance evidence was entitled to some weight in relation to the ultimate issue of identity.

Circumstantial Evidence

70The leading case with respect to circumstantial evidence is R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. At para. 30, the Court stated:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

71At para. 35, the Court observed that inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

72A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: Villaroman, at para. 36.

73When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37. The Crown may need to negative these reasonable possibilities, but certainly does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: Villaroman, at para.37.

74The line between a “plausible theory” and “speculation” is not always easy to draw. But the basic 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.

75When assessing circumstantial evidence, it is important to keep in mind that it is the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction.: R. v. Uhrig, 2012 ONCA 470, at para. 13, citing R. v. Coté (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

Analysis

76Identification is the key issue in this case.

77Pursuant to Nikolovski, it is open to me to carefully examine all the surveillance videos filed as exhibits and to make determinations from them, including comparisons with Mr. Sinclair as he appeared in his booking video and before me in court.

78As the Crown’s case depends on circumstantial evidence, the question I must address, pursuant to Villaroman, is whether the Crown has established beyond a reasonable doubt that the only reasonable inference to be drawn in all the circumstances is that Mr. Sinclair was the robber wearing the grey Roots hoodie during the two robberies. In other words, does the circumstantial evidence, assessed logically, in light of human experience, exclude any other reasonable alternative other than guilt? If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt.

79I first note that there is a resemblance between Mr. Sinclair and the perpetrator in terms of their build and body structure. Mr. Sinclair and the perpetrator have the same athletic build, which is particularly evident from the video footage of the IDA robbery and Mr. Sinclair’s booking video.

80During the IDA robbery, the perpetrator leapt over the counter with relative ease, approached the pharmacist, and struck him in the face with the red and black duffle bag. The perpetrator’s muscular and athletic physique is apparent as he approached the pharmacist. The muscle tone and definition in his arms is clearly visible.

81The booking video shows that Mr. Sinclair has a similar muscular and athletic-looking body structure, including the muscle tone and definition in his arms: see Booking Video at 19:24:27 – 19:25:24.

82The perpetrator and Mr. Sinclair share the same immutable characteristics in terms of gender, race, age range, skin tone, and complexion.

83A comparison of the perpetrator’s facial features with those of Mr. Sinclair is limited by the fact that the perpetrator was masked and his hoodie covered his forehead. However, at one point during the IDA robbery, and several times during the Main Drug Mart robbery, the mask slipped below the perpetrator’s nose, thereby enabling a comparison of his skin tone and complexion with that of Mr. Sinclair. Having viewed Mr. Sinclair’s booking video and observed him in court, I find that there is a correlation between Mr. Sinclair’s skin tone and complexion with that of the perpetrator.

84At the time of his arrest and during the booking procedure, Mr. Sinclair was wearing a blue surgical mask, which is the same colour and type of mask worn by the perpetrator during the robberies. At one point during the booking, the mask slipped below Mr. Sinclair’s nose and ended up in the same position as the mask on the perpetrator’s face when it slipped below his nose during the two robberies. Photographs developed from the robberies at those points in time, as well as the videos themselves, enable a direct comparison to be made between Mr. Sinclair’s nose and the perpetrator’s nose.

85After studying the stills and relevant portions of the booking and robbery videos, I find that there is a correlation between the size and shape of Mr. Sinclair’s nose and the size and shape of the perpetrator’s nose. There is also a correlation with respect to the orientation of the nose to the rest of the face and the distance between their eyes. There are no apparent points of dissimilarity in terms of these immutable characteristics.

86I recognize that there is some lack of clarity in the stills of the perpetrator’s face when the mask is below his nose, particularly with respect to the still from the IDA robbery. The still from the Main Drug Mart robbery is clearer. However, I have not relied solely on the stills in finding a correlation between the size and shape of Mr. Sinclair’s nose and the size and shape of the perpetrator’s nose. In addition to the stills, I have studied the footage of the robbery videos at those points where the perpetrator’s mask is below his nose and have viewed them frame by frame. As noted earlier, there are several occasions during the second robbery when the perpetrator’s mask slipped below his nose, allowing a view of his nose from several different angles. For example, reference can be made to the following exhibits:

Exhibit 1, Tab 2 – “IDA Behind Counter”, at 04:29:23 to 04:29:25; Exhibit 1, Tab 2 – “Main Drug Mart Behind Counter”, at 16:50:51 to 16:50:53, 16:51:03 to 16:51:08; and 16:51:13 – 16:51:16; and Exhibit 1, Tab 2 –“Booking Video” at 19:04:57 to 19:05:08; and Tab 3 “Photo Sinclair” – Booking, 2020/11/22 at 3:27 a.m.

87The perpetrator was wearing gray underwear with a darker-coloured waistband when he robbed the two pharmacies. The booking video and stills developed from that video show that at the time of his arrest, Mr. Sinclair was also wearing grey underwear, which appears to be the same shade of grey as the perpetrator’s underwear. Mr. Sinclair’s underwear, like that of the perpetrator, had a darker-coloured waistband.

88The videos of the perpetrator show that he was wearing all-black shoes with black soles and black laces with a silver tab. At the time of his arrest, Mr. Sinclair was also wearing all-black shoes with black soles and black laces with a silver tab. The silver tabs were in the same location on his shoes as the tabs on the perpetrator’s shoes.

89It is apparent that the robbers used 996 O’Connor Drive, Unit 203, to change some of their clothing in an attempt to quickly alter their appearance. The perpetrator left his grey Roots hoodie and dark jeans in the unit. Notably, he did not leave behind his shoes, from which it may be inferred that when he left Unit 203, he was still wearing the same all-black shoes with the silver tabs that he wore during the robberies. However, he would have been wearing a different top and pants.

90At 5:29 p.m., when Mr. Sinclair exited 996 O’Connor Drive in the company of Mr. Mohamed and Mr. Beckles and got into the back seat of the Mercedes with them, he was wearing all-black shoes with black laces and silver tabs, as described above. However, his other clothing included a camouflage sweater, camouflage pants, and a puffy black vest.

91Common sense dictates that it would be quicker, easier, and far more likely that someone trying to alter their appearance in terms of clothing would change their sweatshirt and pants, but not necessarily their shoes, and certainly not their underwear.

92Mr. Beckles, at the time of his arrest, was wearing a puffy black jacket, which he was not wearing when he committed the robberies. However, he was still wearing the same shoes that he wore during the robberies.

93Mr. Mohamed did not change any of his clothes. When he exited 996 O’Connor with Mr. Sinclair and Mr. Beckles, he was wearing the same shoes and clothing that he had worn during the robberies.

94The young offender who entered the pharmacies with Mr. Mohamed, Mr. Beckles, and the perpetrator, discarded his black/blue/grey jacket in Unit 203 but not his shoes.

95The only shoes left behind in Unit 203 were the distinctive turquoise sneakers worn by the young offender who had acted as the get-away driver. He was the first of the robbers to enter the alleyway between 990 and 994 O’Connor Drive while carrying a bag. A couple of minutes later, Mr. Mohamed, Mr. Beckles, the perpetrator, and the young offender wearing the black/blue/grey jacket followed him into the alleyway.

96The entry of the five robbers into 996 O’Connor Drive was not captured on video as, according to Officer Strilec, there was no video surveillance of the entrance to the building. However, it is evident that all five robbers were in the building, given who was seen leaving the building in combination with the clothing left behind in Unit 203 – namely, the get-away driver’s turquoise sneakers; the young offender’s black/blue/grey jacket; and the perpetrator’s grey Roots hoodie and black pants. The red and black duffle bag was also left behind. This bag was shared by the robbers over the course of the day. It was carried by the perpetrator during the first robbery, carried by Mr. Beckles during the second robbery, and carried by the young offender wearing the black/blue/grey jacket from the parking lot where the Tiguan was parked to the alleyway between 990 and 994 O’Connor.

97There can be no doubt that Mr. Mohammed and Mr. Beckles entered 996 O’Connor Drive as the video surveillance shows them leaving the building with Mr. Sinclair at 5:29 p.m. This was just a little over half an hour after the second robbery, which took place or was reported to the police at 4:53 p.m.

98Defence counsel noted that there is no video surveillance that captured the two young offenders exiting 996 O’Connor Drive. It is not known if, when, or how they exited. Defence counsel submits that since they exited undetected by surveillance cameras, it is a reasonable possibility that the robber wearing the grey Roots hoodie exited with them or possibly on his own.

99Defence counsel initially submitted that one or other or all three of them – that is, the two young offenders and the perpetrator – must have had access to another unit in the building as the young offender would not have left his shoes in Unit 203 without having access to another pair of shoes. Similarly, the perpetrator wearing the Roots hoodie and black pants must have had access to clothing in another unit, as he would not likely walk down the hall without his pants, unless he was wearing other clothing under his pants and/or under his Roots hoodie. However, as noted earlier, the robbers carried several bags with them after they left the Tiguan and headed for 996 O’Connor Drive. Taking into account that the robberies were a planned and joint venture in which the robbers stole a car several days prior to the robberies and took care to disguise themselves, it is likely that they also brought clothing with them in order to change their appearance after committing the robberies. It is reasonable to infer that the bags that they are seen carrying after abandoning the Tiguan contained clothes for that very purpose. The only exception was Mr. Mohammed who, upon his arrest, was wearing the same clothes that he wore during the robberies.

100The young offender who acted as the getaway driver and who was the first robber to head toward the alleyway between 990 and 994 O’Connor Drive was carrying a bag that was certainly large enough to contain, at the very least, a pair of shoes: see stills developed at 17:05:32 and 17:05:35 (video time.)

101As described earlier, the “Tiguan video” shows the perpetrator holding what appears to be a large dark bag, possibly a garbage bag, as he approached and opened the right front passenger door of the Tiguan. He then crouched down and leaned into the car. He was still holding the bag when he stood up and walked to the rear of the vehicle. Footage from another camera shows that he was not carrying that bag when, two minutes later, he and the young offender in the black/blue/grey jacket rounded the corner of Gardens Crescent and O’Connor on their way to 996 O’Connor. However, the young offender at that point happened to be carrying a bag that was very similar in appearance to the bag that the perpetrator was holding just two minutes earlier – that is, a large dark bag that was possibly a black garbage bag.

102The young offender wearing the black/blue/grey jacket was also carrying the red and black duffle bag, which was clearly large enough to contain articles of clothing. As earlier noted, the video footage shows that three of the robbers had possession of that bag at various times during that day.

103Mr. Beckles was carrying a small bag when he, Mr. Mohamed, the perpetrator, and the young offender in the black/blue/grey jacket followed the same route taken by the young offender in shorts to the alleyway between 990 and 994 O’Connor Drive. They disappeared from view at that point but ultimately ended up at 996 O’Connor.

104The circumstantial evidence in this case includes both the temporal proximity of events and the fact that the commission of the robberies was a joint enterprise.

105The fact that Mr. Sinclair was in the direct company of two of the robbers – Mr. Mohamed and Mr. Beckles – shortly after the commission of the offences and the abandonment of the get-away vehicle is significant. As Crown counsel noted, it is not as though Mr. Sinclair was found to be wearing a blue surgical mask, grey underwear, and similar shoes to those of the perpetrator six months after the robberies and while walking in a mall. Rather, Mr. Sinclair was wearing the blue surgical mask, grey underwear, and the all-black shoes with black laces and silver tabs while in the company of two of the robbers less than an hour after the second robbery and within half an hour of the abandonment of the get-away vehicle that was parked just one block away.

106At the time that Mr. Sinclair was wearing the blue surgical mask, grey underwear, and black shoes similar to those of the perpetrator, he was not only in the direct company of two parties who were admittedly involved in the robberies but he was with them when they exited 996 O’Connor. This is the same building where the discarded clothing and property used during the robberies was located and which, notably, included the grey Roots hoodie and dark jeans worn by the perpetrator during the robberies. It is also notable that no all-black shoes with black laces and a silver tag were discarded in Unit 203, from which it may be inferred that the perpetrator was still wearing those shoes when he exited the building. When Mr. Sinclair exited the building with Mr. Mohamed and Mr. Beckles, he was wearing the same kind of shoes – that is, all-black shoes with black laces and a silver tag.

107Mr. Mohamed and Mr. Beckles were only in Unit 203 or the apartment building for 25 minutes or less. They exited the building with Mr. Sinclair at 5:29 p.m. All three men then entered the Lyft vehicle that awaited them outside 996 O’Connor.

108Crown counsel noted that the robbers would most likely have realized that the police would be looking for four or five people as suspects in the robberies as they had committed the robberies together as a group. One of the young offenders drove the stolen Tiguan. The other four entered the pharmacies and committed the robberies. After each robbery, the five of them fled together in the Tiguan. They were still together when the Tiguan was abandoned behind 967 O’Connor. From there, they all walked the same route toward 996 O’Connor, with the one young offender out in front, and the other four robbers following behind him.

109In these circumstances, it is reasonable to assume that after four of the robbers had changed some of their clothes, the group decided to split up in some fashion. Crown counsel submits that the evidence supports a finding that the young offenders went one way, and the adults went another.

110Mr. Beckles and Mr. Mohamed would no doubt be trying to distance themselves from the Tiguan, since it directly linked them to the robberies. The Lyft vehicle was to be their mode of escape, given that they had abandoned the getaway car. The unidentified perpetrator would be seeking to leave the area for the same reasons.

111As noted earlier, Mr. Mohamed and Mr. Beckles, along with the perpetrator and the young offender wearing the black/blue/grey jacket, entered the alleyway between 990 and 994 O’Connor at 5:04 p.m. Just 25 minutes later, at 5:29 p.m., Mr. Mohamed, Mr. Beckles, and Mr. Sinclair exited 996 O’Connor together. All three men then got into the Mercedes awaiting them outside the apartment building. This was just half an hour after the Tiguan had been parked in the lot behind 957 O’Connor Drive and just a little over half an hour after the second robbery. Mr. Mohamed was still in possession of the firearm used in that robbery. None of the three males – neither Mr. Beckles, Mr. Mohamed nor Mr. Sinclair – lived in the area or anywhere near 996 O’Connor Drive, which is in East York. Mr. Sinclair lived on Birchlea Drive in South Etobicoke, which is approximately 25 kilometres from 996 O’Connor Drive.

112In summary, the circumstantial evidence upon which the Crown relies in order to establish that Mr. Sinclair was the robber wearing the grey Roots hoodie and all-black shoes with black laces and silver tabs during the robberies is as follows:

1. There is high-quality video surveillance of both robberies. There is also high-quality video footage of the booking of Mr. Sinclair and a high-quality photograph of him developed from the booking. There is good quality surveillance of the Tiguan and the route that the parties took after they abandoned it. The quality is sufficient to identify the robbers’ clothing and footwear such that they may be distinguished one from the other.
2. The videos provide strong evidence of resemblance between Mr. Sinclair and the perpetrator with respect to certain immutable physical characteristics. These include body type and build, muscle definition, skin tone, complexion, age range, the size and shape of the nose, and the orientation of the nose to the rest of the face and the distance between their eyes.
3. Mr. Sinclair was in the company of two of the known robbers at 5:29 p.m., which was just over half an hour after the second robbery, which took place at 4:53 p.m., and within half an hour of the Tiguan being abandoned. Like the perpetrator, Mr. Sinclair was wearing all black shoes with all black laces and silver tabs. The tabs were in the same location on his shoes as the silver tabs on the perpetrator’s shoes.
4. Mr. Sinclair was wearing grey underwear that appears to be the same shade or colour as the perpetrator’s underwear. His underwear, like that of the perpetrator, had a darker-coloured waistband.
5. Mr. Sinclair was also wearing the same type and colour of blue surgical mask worn by the perpetrator during the robberies.
6. Mr. Sinclair is seen leaving 996 O’Connor, which is the same building where the clothing and property used during the robberies had recently been abandoned, and where the perpetrator abandoned his Roots hoodie and black jeans. The perpetrator did not, however, abandon his all-black shoes with black laces and silver tabs, from which it may be inferred that when he left Unit 203, he was still wearing those shoes. When Mr. Sinclair left 996 O’Connor, he was wearing shoes of the exact same description.
7. When Mr. Sinclair left 996 O’Connor, he was with two of the robbers, namely, Mr. Mohamed and Mr. Beckles. All three of them then got into the Lyft. None of them lived in the area.
8. Mr. Sinclair was in possession of a relatively large amount of money – $327.10 – at the time of his arrest. Mr. Beckles and Mr. Mohamed also had large amounts of cash on them.

113During his submissions, defence counsel noted that the resemblance evidence is limited due to the fact that the perpetrator was masked and wearing a hoodie. It is therefore not possible to compare the perpetrator’s hair, mouth, jaw, chin, or cheeks with Mr. Sinclair’s hair, mouth, jaw, chin, or cheeks.

114Defence counsel acknowledges that a comparison of Mr. Sinclair’s nose and eyes with the perpetrator’s nose and eyes does not exclude Mr. Sinclair as the perpetrator, but submits that there is nothing idiosyncratic about those features. However, as noted earlier, there is a correlation between the size and shape of Mr. Sinclair’s nose and the size and shape of the perpetrator’s nose. There is also a correlation with respect to the orientation of the nose to the rest of the face and the distance between their eyes. There are no dissimilarities in that regard.

115Defence counsel submits that the likeness in skin tone is of little weight, as it was not overly dark or light, and that gender, race, and age range are more or less generic similarities. However, in addition to these similarities, there is a correlation between Mr. Sinclair’s body structure and that of the perpetrator in that they both have a muscular and athletic physique. The muscle tone and definition in the perpetrator’s arms is visible in the video footage of the robberies, and is particularly apparent in the IDA video when the perpetrator was approaching the pharmacist and was about to strike him with the red and black bag. The muscle tone and definition in Mr. Sinclair’s arms is apparent in the booking video at 20:12 to 21:08. Defence counsel, in addressing this similarity, submitted that there is nothing particularly remarkable about a 20-year-old having an athletic build.

116Defence counsel submits that the fact that Mr. Sinclair appeared to be wearing the same brand and colour of shoes as those worn by the perpetrator is of limited probative value, given that Nike Air Force One sneakers are a popular brand.

117Defence counsel submits that since Mr. Sinclair’s underwear was not seized, a comparison of the colour of the underwear with the perpetrator’s underwear is problematic. In any event, grey underwear would not be particularly uncommon.

118Defence counsel acknowledged that Mr. Sinclair’s possession of over $300 is a little more incriminating, but described it as not being a particularly large amount of money. He noted that the denominations of the money in Mr. Sinclair’s possession differed from those in the possession of Mr. Mohamed and Mr. Beckles. For example, Mr. Sinclair, had 11 twenty-dollar bills, 18 five-dollar bills and a quantity of change; Mr. Beckles had 20 twenty-dollar bills; and Mr. Mohamed had 30 twenty-dollar bills. There is no evidence regarding the denominations of the money taken during the robbery, which was approximately $1900.

119Defence counsel noted that there is no DNA evidence linking Mr. Sinclair to the Roots hoodie. DNA from at least three people was detected on the hoodie, but only one DNA profile could be developed. Mr. Sinclair was excluded from that profile. There was insufficient DNA to develop any other profiles. There is no fingerprint evidence as the perpetrator wore gloves during both robberies. Although the police had Mr. Sinclair’s phone, there was no evidence adduced with respect to communications on the phone.

120Defence counsel submits that the strongest evidence in support of the Crown’s case is the fact that Mr. Sinclair was in the company of two of the robbers when leaving a building where the clothing had been abandoned. This was just shortly after the getaway vehicle had been abandoned, and only one block away from the vehicle. However, defence counsel submits that there are alternative explanations that are sufficient to raise a reasonable doubt that Mr. Sinclair committed the robberies.

121Defence counsel noted that there was no video surveillance at the entrance to the building. Hence, the perpetrator, after discarding his Roots hoodie and black pants, could have left the building with the two young offenders or left on his own, without being caught on video. Counsel submits that it is also plausible that the perpetrator went either alone or with the two young offenders to another unit in the building. Defence counsel submits that these are all reasonable possibilities and, bearing in mind the deficiencies or weaknesses in the various pieces of circumstantial evidence, the Crown has not established beyond a reasonable doubt that Mr. Sinclair was the perpetrator wearing the Roots hoodie during the two robberies. It was, he submits, Mr. Sinclair’s misfortune to meet up with Mr. Mohamed and Mr. Beckles in the apartment building at 296 O’Connor Drive and agree to take a ride with them.

122In assessing the circumstantial evidence in this case, I bear in mind that it is the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. As noted in Uhrig, at para. 13, it may be and very often is the case that items of evidence adduced by the Crown, when examined separately, do not have a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for conviction.

123Having considered the circumstantial evidence as a whole and its cumulative effect, I find that the only reasonable or rational inference that can be drawn is that Mr. Sinclair was the robber who wore the grey Roots hoodie during the two robberies. In my view, the possibilities suggested by the defence that the perpetrator left 996 O’Connor Drive alone or with the two young offenders, or went to another unit in the building, either alone or with the two young offenders, are fanciful and not reasonable as they do not take into account the totality of the circumstances.

124As Crown counsel observed, in order for there to be a rational inference other than that Mr. Sinclair was the perpetrator, there would have to be a remarkable series of coincidences, including the following:

• Another Black male, who happened to have the same build and athletic-looking body structure as Mr. Sinclair, and was of a similar age, committed the robberies with Mr. Mohamed, Mr. Beckles, and the two young offenders.
• This other person also happened to have the same skin tone and complexion as Mr. Sinclair, as well as the same nose structure, including the same shape and size of nose and the same orientation of the nose to the rest of the face and the same distance between the eyes.
• This other person with those characteristics also happened to know Mr. Mohamed and Mr. Beckles, and knew them well enough to commit robberies with them.
• This other person would also have to have known the two young offenders, and would have happened to decide to either leave 996 O’Connor Drive on his own or leave with the young offenders.
• Mr. Sinclair would have just happened to be at 996 O’Connor Drive in East York when the robbers attended Unit 203 in that building shortly after the second robbery. Mr. Sinclair does not live in that area. His home is on Birchlea Avenue in South Etobicoke.
• Mr. Sinclair would have just happened to meet up with Mr. Beckles and Mr. Mohamed, and potentially the two young offenders, during the relatively short time that Mr. Mohamed and Mr. Beckles were in the building, which was, at most, 25 minutes.
• Having met up by coincidence at 996 O’Connor Drive during that brief period, Mr. Sinclair, Mr. Mohamed, and Mr. Beckles just happened to decide to leave the building together. They also happened to decide to share a paid service to go to some other location together.
• Mr. Sinclair just happened at the time of his arrest to be in possession of a fairly large amount of money – about $330.
• The other person who committed the robberies with Mr. Mohamed and Mr. Beckles just happened to be wearing a blue face mask on that day – exactly the same mask that Mr. Sinclair was wearing at the time of his arrest.
• This other person, like Mr. Sinclair, also just happened to be wearing grey underwear with a darker coloured waistband that day.
• This other person also just happened on that day to be wearing all-black Nike Air Force One sneakers with all black laces and a silver tab, which were the same as Mr. Sinclair’s shoes.

125When the circumstantial evidence is considered as a whole, the only reasonable inference that can be drawn is that Mr. Sinclair was the robber wearing the grey Roots hoodie during both robberies. The Crown has met its burden. Having considered all of the evidence and the submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Sinclair committed the robbery of the IDA pharmacy. He is therefore found guilty on Count 3.

Count 1

126Count 1 charges Mr. Sinclair that:

he, on or about the 21st day of November in the year 2020, at the City of Toronto, in the Toronto Region did, while armed with a firearm, to wit a handgun, rob Laxmi Basnet, Mervat Awadalla, and Josie Mediana, contrary to s. 344(1)(a) of the Criminal Code of Canada.

127Mr. Sinclair’s identity as the robber in the grey Roots hoodie has been established beyond a reasonable doubt. He is guilty of committing that robbery. The remaining issue with respect to Count 3 is whether he is also liable for the additional element contained in s. 344(1)(a) – that is, robbery “while armed with a firearm.”

128Section s. 21(2) of the Code states:

21(2) Common intention – Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

129Section 21(2) imposes party liability for offences that are incidental to the carrying out of a common unlawful design. Liability under s. 21(2) requires the Crown to prove that an accused formed an intention with others to engage in an unlawful purpose and that one or more of the others, in carrying out that unlawful purpose, committed a different offence that the accused knew or ought to have known was a probable consequence of carrying out the common unlawful purpose: R. v. Kelly, 2017 ONCA 920, 356 C.C.C. (3d) 467, at para. 24.

130In R. v. Anderson-Wilson, 2010 ONSC 489, at para.70, Justice Hill referred to R. v. Chang, 2009 ONCA 564, as an example of a situation where possession of a firearm was established under s. 21(2):

Possession of a loaded firearm may also be established through reliance on s. 21(2) of the Code; for example, proof that persons formed an intention in common to rob someone and that an individual accused was “a party to the firearms offences because he knew or ought to have known” that one of the group would have a gun: R. v. Chang, 2009 ONCA 564 (Ont. C.A.) at para. 2-4; see also R. v. McLellan (2003), 2003 BCCA 650, 181 C.C.C. (3d) 192 (B.C.C.A.) at para. 26-39.

131The common unlawful purpose in this case was the robbery of the Main Drug Mart. There is no doubt that Mr. Sinclair agreed to the commission of the robbery and participated in it. There is also no doubt that one of the robbers, Mr. Mohamed, in the course of carrying out the robbery, was armed with a firearm. The issue before the court is whether Mr. Sinclair, as a party to the common unlawful purpose to rob the pharmacy, knew or ought to have known that Mr. Mohamed would be armed with a firearm during the robbery.

132In my view, there is clear and compelling evidence that Mr. Sinclair knew or ought to have known that Mr. Mohamed would be in possession of a gun during the Main Drug Mart robbery.

133Pursuant to the agreed statement of fact, no gun was seen during the IDA robbery. That is an accurate statement. However, Mr. Mohamed’s behaviour during the IDA robbery, as seen in the video footage, indicates that he had a gun at that time, which was just one-and-a-half hours prior to the Main Drug Mart robbery.

134Upon entering the IDA pharmacy, Mr. Mohamed had both of his hands covered by the sleeves of his hoodie. Seconds later, he put his covered right hand into the right pocket of the hoodie and appeared to be holding something in place that was under the hoodie on his right side near his waist. Mr. Mohamed’s hand remained in that position throughout the time that he was in the pharmacy, and even during an encounter with one of the employees that would normally call for him to use both of his hands. During that encounter, Mr. Mohamed used only his left hand, although it is apparent that he is righthanded – during the second robbery, he drew the gun with his right hand from the right side of his waistband and held it in his right hand while pointing it at the pharmacist and hitting her in the head with it. However, during the first robbery, when blocking the IDA employee from passing him in the aisle and while directing her to do something by pointing his finger, he used only his left hand. His right hand remained in his right pocket with his right arm held close to his body. His hand and right arm were still in that position as he ran out the door with the other robbers, including Mr. Sinclair, and headed back to the Tiguan. This behaviour, plus the fact that Mr. Mohamed was clearly in possession of a gun just one-and-a-half hours later during the second robbery, strongly supports the inference that he had the gun with him during the first robbery, but chose not to display it.

135Mr. Sinclair was present for and participated in the IDA robbery with Mr. Mohamed and the other three parties. He would have seen that Mr. Mohamed was keeping his right hand in his pocket, particularly when Mr. Mohamed ran ahead of him and exited the pharmacy.

136In addition, Mr. Sinclair was in close proximity to Mr. Mohamed both before and after the IDA robbery. When the Tiguan arrived on scene, Mr. Sinclair and Mr. Mohamed were both seated in the back seat of the vehicle. After the robbery, when they ran back to the car, Mr. Beckles was the first one into the back seat, followed by Mr. Mohamed and Mr. Sinclair. At that point, Mr. Sinclair would have been sitting right beside Mr. Mohamed and to his right – the same side where Mr. Mohamed appeared to be carrying a gun during the robbery.

137There is no evidence as to where the parties went during the one-and-a-half hours between the robberies, but they were presumably together in the car and in close proximity for at least part of that time, given that the IDA Pharmacy is in York and approximately 14 kilometres from the Main Drug Mart, which is in East York.

138There is nothing in the video footage of the Main Drug Mart robbery that would suggest that Mr. Sinclair was surprised, upset, or shocked when Mr. Mohamed drew the gun and pointed it at the pharmacist and employee behind the counter, which implies that he was well aware that Mr. Mohamed was armed with a gun. When Mr. Mohamed drew the gun, Mr. Sinclair and the young offender in the black/blue/grey jacket were behind the counter and trying to control the pharmacist and employee. Mr. Sinclair had grabbed the employee’s cell phone from her hand. The video footage shows that Mr. Sinclair would have seen Mr. Mohamed brandishing the gun from the aisle on the other side of the counter. There is no audio with the video footage, but Mr. Sinclair’s and the young offender’s gestures indicate that they were demanding that the pharmacist or employee open the cash register. After drawing the gun and pointing it at the two victims, Mr. Mohamed leapt over the counter, walked down the aisle toward them while holding out the gun, and struck the pharmacist in the head with it. At that point, the employee opened the cash register, which enabled the young offender to steal the cash. Mr. Sinclair then leapt over the counter and fled the scene with the other three accused.

139Following the Main Drug Mart robbery, Mr. Sinclair continued to take part in what appears to have been the robbers’ pre-arranged plans with respect to the robberies. He participated in emptying the Tiguan; he went with the other four parties to Unit 203, where he changed his clothes; he exited 996 O’Connor Drive with Mr. Mohamed and Mr. Beckles; and he got into the back seat of the Mercedes with them, knowing full well that Mr. Mohamed was still in possession of the handgun.

140Based on all of the evidence, including Mr. Mohamed’s behaviour during the IDA robbery, which was consistent with his being armed with a firearm at that time, Mr. Sinclair’s presence and participation in the IDA robbery with Mr. Mohamed, his proximity to Mr. Mohamed while in the Tiguan prior to and after the robbery, which put him in close proximity to the firearm that Mr. Mohamed was no doubt carrying at that time, and Mr. Sinclair’s lack of reaction when Mr. Mohamed produced the firearm during the Main Drug Mart robbery, I am satisfied beyond a reasonable doubt that Mr. Sinclair knew or ought to have known that Mr. Mohamed would be armed with a firearm while committing the Main Drug Mart robbery. Mr. Sinclair is accordingly found guilty on Count 1 in the indictment.

Count 5

141Count 5 charges Mr. Sinclair with possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code.

142I have raised an issue with counsel concerning this count and will be hearing further submissions with respect to that issue on March 1, 2024. In the meantime, counsel have asked that I provide my reasons on the remaining counts, which I have proceeded to do.

Note (March 1, 2024): The issue raised by the Court and which resulted in an application by the defence to re-open the trial on Count 5, was whether the Crown had established beyond a reasonable doubt that Mr. Sinclair knew that the firearm was loaded. On March 1, 2024, after hearing from counsel on this issue, I found Mr. Sinclair not guilty on Count 5, but guilty of the lesser and included offence under s. 91(1): See R. v. Lugela, 2021 ABPC 274, at para. 36, where the trial judge references R. v. Guha, 2012 BCCA 423 [2012] B.C.J. No. 2204, in finding that s. 91(1) is a lesser and included offence of s. 95(1).

Counts 2 and 4:

143Count 2 charges Mr. Sinclair with committing an indictable offence while having his face masked by a surgical mask, contrary to s. 351(2). This count relates to the Main Drug Mart robbery.

144Count 4 charges Mr. Sinclair with committing the same offence under s. 351(2) but in relation to the IDA pharmacy.

145Section 351(2) states:

(2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction.

146Defence counsel noted that the robberies were committed during the Covid-19 pandemic. Thus, Mr. Sinclair’s wearing of the blue surgical mask on November 21, 2020, could have been motivated by public health concerns rather than for the purpose of disguising his face during the robberies. Defence counsel acknowledges that Mr. Sinclair was not wearing his mask when seated in the Mercedes, but submits that he may have removed it when speaking to a police officer through the window. It is not possible to determine from the video footage if Mr. Sinclair was masked prior to speaking to the officer. In any event, I note that after speaking to the officer, Mr. Sinclair did not put on his mask. During the LYFT video, namely video 2, at 18:46:03, Mr. Sinclair’s full face is visible and his mask is down under his chin.

147In considering Mr. Sinclair’s purpose in wearing the mask during the robberies, I take into account that he was also wearing a hoodie, which was drawn tightly around his face and covering his forehead. He was wearing gloves, which would prevent him from leaving fingerprints. The getaway car was abandoned, and he discarded some of his clothing. All these measures were taken by Mr. Sinclair in an attempt to conceal his identity, and support the finding that Mr. Sinclair wore the mask to disguise his face with the intention of committing the robberies. That is the only reasonable and logical conclusion in the circumstances.

148As the Crown has met its burden of proof beyond a reasonable doubt, I find Mr. Sinclair guilty on Counts 2 and 4 in the indictment.

Counts 9 and 10

149Count 9 charges Mr. Sinclair that he did, without lawful excuse, possess a firearm, namely a handgun, while prohibited from doing so by reason of an order made by the Ontario Court of Justice on March 11, 2020, under s. 51 of the Youth Criminal Justice Act, contrary to s. 117.01(1) of the Code.

150Count 10 charges Mr. Sinclair with the same offence but in reference to an order made by the Ontario Court of Justice on March 15, 2019, which prohibited him from possessing a firearm.

151The fact that the orders were made is admitted pursuant to the agreed statement of facts.

152Given my finding that Mr. Sinclair is guilty as a party to the possession of the semi-automatic handgun brandished by Mr. Mohamed during the Main Drug Mart robbery, I find Mr. Sinclair guilty on both Counts 9 and 10.

Conclusion

153For the reasons given, I find Mr. Sinclair guilty of the following offences:

Count 1: Robbery of the Main Drug Mart while armed with a handgun Count 2: Having his face masked with intent to commit an indictable offence Count 3: Robbery of the IDA pharmacy Count 4: Having his face masked with intent to commit an indictable offence Count 5: As stated earlier, counsel will be making further submissions with respect to Count 5 and whether the Crown has established beyond a reasonable doubt that Mr. Sinclair knew that the handgun was loaded. Consequently, I am not in a position to render judgment on this count at this time.

Note (March 1, 2024): As noted in para. 142 of these reasons, after hearing further submissions by counsel on March 1, 2024, I found Mr. Sinclair not guilty as charged under s. 95(1) of the Code but guilty of the lesser and included offence under s. 91(1).

Count 9: Guilty of possession of a firearm while prohibited from doing so by reason of an order made by the Ontario Court of Justice on March 11, 2020 Count 10: Guilty of possession of a firearm while prohibited from doing so by reason of an order made by the Ontario Court of Justice on March 15, 2019

On June 1, 2023, I found Mr. Sinclair not guilty on Counts 6, 7, and 8 as the Crown offered no evidence on those charges.

Garton J.