Reasons for Judgment
Court File No.: CR-23-50000665-0000
Date: 2025-03-07
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Dexter Peters
Appearances:
Ari Linds, for the Crown
Michael Coristine and Samarra D’Souza, for the Defence
Heard: November 12-15, 18-20, and 25, 2024 and January 2-3, 2025
Judge: Wendy L. Spies
Introduction
1On Sunday, October 23rd, 2022, shortly before 6 p.m., a woman whom I will refer to as C.M., was violently robbed at gunpoint by a youth, whom I will refer to as J.M., while parking her car in the parking lot behind the building at 90 Sherbourne Street (“Sherbourne”), Toronto, just south of Richmond Street East (“Richmond”). The defendant, Dexter Peters, is alleged to have conspired with J.M. to commit the robbery or at the very least is alleged to have been an accessory to that robbery pursuant to s. 21 of the Criminal Code. He is charged with robbery with a firearm, contrary to s. 344(1)(a) of the Criminal Code, disguise with intent contrary to s. 351(2)(a) of the Criminal Code, conspiracy to commit an indictable offence contrary to s. 465(1)(c) of the Criminal Code, unauthorized possession of a restricted firearm contrary to s. 91(3)(a) of the Criminal Code, possession of a restricted firearm knowing possession is unauthorized contrary to s. 92(3) of the Criminal Code, possession of a prohibited device knowing possession is unauthorized contrary to s. 92(3) of the Criminal Code, possession of a firearm in a motor vehicle contrary to s. 94(2)(a) of the Criminal Code, possession of a loaded restricted firearm contrary to s. 95(2)(a) of the Criminal Code, possession of a firearm obtained by crime contrary to s. 96(2)(a) of the Criminal Code, and fail to comply with release order contrary to s. 145(5)(a) of the Criminal Code.
2Mr. Peters elected trial by judge alone before me and pleaded not guilty to all charges.
3At the outset of his trial, Mr. Peters brought an application for an order declaring that his ss. 7, 8, 9, 10(a) and 10(b) rights, as set out in the Canadian Charter of Rights and Freedoms (“Charter”), were violated. He sought an order staying the proceedings pursuant to s. 24(1) of the Charter or in the alternative, excluding certain evidence and/or a substantial reduction of sentence, if necessary, pursuant to s. 24(2) of the Charter. Counsel agreed to proceed by a voir dire blended with the trial. At the conclusion of the Crown’s case, I dismissed the application; see R. v. Peters, 2024 ONSC 7247 (“Charter Ruling”).
4The Crown called several of the police officers involved in the detention and arrest of Mr. Peters and J.M. Unfortunately, two officers, PC Sean Clendinning and DC Alex Brooker, were on long-term leave and not available to testify. On consent, the evidence they gave at the Preliminary Inquiry for Mr. Peters in September 2023 was filed. Counsel also filed a comprehensive Agreed Statement of Facts (“ASF”) along with exhibits from the Preliminary Inquiry which included footage from body-worn cameras (“BWC”) worn by several of the officers and CCTV evidence of the robbery and other video evidence relied upon by both parties. Mr. Peters testified on the voir dire on the understanding that his evidence was only to be considered on his Charter application and would not impact his decision whether to elect to testify in his defence of the charges should a stay of proceedings not be ordered. After I dismissed his application, Mr. Peters elected not to testify.
The Issues
5There is no dispute that on October 23rd, 2022, C.M.’s vehicle, a white 2015 Mercedes sedan, was travelling eastbound on Adelaide Street East, Toronto, (“Adelaide”) and then northbound onto Sherbourne. At approximately 5:57 p.m. C.M. drove her vehicle into the parking lot behind the building situated at 90 Sherbourne. Video evidence from 90 Sherbourne (the “90 Sherbourne video”) provides two views of the robbery, one referred to as the “Garage Area” view and the other the “Back Door Camera” view.
6The 90 Sherbourne video shows a white SUV stopping on Adelaide, at the entrance to the driveway to this parking lot and J.M. and Mr. Peters exiting the rear passenger doors on each side of the vehicle while C.M. was parking her car. They entered the parking lot on foot. The white SUV continued down the street and did not return. It is admitted that Mr. Peters and J.M. can be observed on the 90 Sherbourne video and that the youth who can be seen assaulting and robbing C.M. is J.M., Mr. Peters’ younger half-brother.
7Both views from the 90 Sherbourne video show the movement of J.M. and Mr. Peters before and after the robbery of C.M. Mr. Peters walked to an alleyway called Cutter Lane, that exits from the parking lot onto Richmond, before the robbery, and he remained there until after the robbery. He would not have been able to see what was going on during the robbery. C.M. was sitting in her car when J.M. commenced the violent, gunpoint robbery. J.M. banged a firearm on the window of C.M.’s car and was yelling at her to get out of the car. When she did, he struck her on the head and then in the struggle it appears that he tried to drag her into the back seat of the vehicle. C.M. broke free and fled down the driveway towards Sherbourne. J.M. chased her as she ran, but she was able to escape. J.M. and Mr. Peters interacted in the laneway and then J.M. returned to C.M.’s car and stole a Chanel purse, while Mr. Peters remained in Cutter Lane. J.M. and Mr. Peters then walked down Cutter Lane, away from the parking lot, towards Richmond. Although the 90 Sherbourne video shows that there were two or three possible interactions of some sort between J.M. and Mr. Peters during the incident, there is no direct evidence about anything that was said between them. C.M., and a resident who witnessed the incident from her balcony both called 9-1-1.
8After the robbery, police determined that a tracker had been installed on C.M.’s vehicle. The position of the Crown, based on the tracker and CCTV video evidence of the movement of C.M.’s vehicle before the robbery, is that the white SUV that J.M. and Mr. Peters arrived in had been following C.M.’s vehicle for about 10 minutes before the robbery until she arrived at 90 Sherbourne. Based on this evidence and what can be seen on the 90 Sherbourne video, it is the Crown’s position that J.M. and Mr. Peters conspired to have J.M. rob C.M and that during the robbery Mr. Peters was giving directions to J.M. and encouraging him to rob C.M. As such the Crown alleges that Mr. Peters is guilty of conspiracy to commit the robbery pursuant to s. 465(1)(c) of the Criminal Code and that by aiding and abetting J.M. in committing the robbery, he is guilty of the robbery with a firearm and possession of the firearm charges pursuant to ss. 21(1)(b) and (c) of the Criminal Code.
9The position of the defence is that although there was a tracker on C.M.’s vehicle, the evidence is that the tracker could not have been used to track C.M.’s vehicle before the robbery and that the CCTV evidence is not reliable evidence that the white SUV that J.M. and Mr. Peters were in was in fact using the tracker or following C.M.’s vehicle. The defence submits that there are competing reasonable inferences from what can be seen on the 90 Sherbourne video, consistent with Mr. Peters’ innocence. It is submitted that there is no evidence of any act by Mr. Peters that assisted J.M. in the robbery and that to the extent J.M. and Mr. Peters may have communicated with each other, what can be seen on the 90 Sherbourne video is also consistent with Mr. Peters, in fact, discouraging J.M. from robbing C.M. On this basis, the defence argues that the Crown has not proven beyond a reasonable doubt that Mr. Peters conspired with J.M. or aided and abetted J.M. in committing the robbery in any way.
The Evidence and Preliminary Findings of Fact
The evidence of the police of their observations of J.M. and Mr. Peters following the robbery
10In my Charter Ruling, I set out in detail the evidence of the three officers from the community response unit (“CRU”) of 51 Division from the Toronto Police Service (“TPS”); PC Hanson, PC Clendinning and PC Gholamali, who observed J.M. and Mr. Peters walking in the parking lot between Britain Street and Richmond, west of Sherbourne, behind the George Brown College campus (“George Brown”) minutes after the robbery of C.M. They did not hear about the police radio call about the robbery at 6:03 p.m. but decided to follow J.M. and Mr. Peters because one of the officers observed them do a 180-degree turn after they saw the officers who were in uniform and on bicycles, which that officer found suspicious. Although the CRU officers were wearing body-worn cameras (BWCs), they failed to follow the TPS policy which required them to turn on their BWCs once they started following J.M. and Mr. Peters and so I only have their evidence as to what they observed once they decided to follow J.M. and Mr. Peters at around 6:05 p.m. They observed J.M. and Mr. Peters walking together towards Richmond and then turning west towards George Street (“George”). I found in my Charter Ruling, based on the evidence of PC Hanson, that J.M. and Mr. Peters were walking together at a normal pace.
The arrest of J.M.
11When J.M. and Mr. Peters reached the intersection of Richmond and George, the traffic light to walk across George was red. J.M. crossed the intersection at a sharp angle, against the red light, ending up a distance north of the intersection. Meanwhile, Mr. Peters stayed at the corner, waiting for the light to turn green.
12I set out the evidence of the arrest of J.M. in detail in my Charter Ruling. I found that the decision of PC Clendinning and PC Gholamali to investigate J.M. for jaywalking as an alleged infraction of the Highway Traffic Act was a ruse. While they were speaking to J.M., they heard over PC Hanson’s police radio the description of a suspect that matched J.M., which resulted in them arresting him. It was during that arrest that they found the firearm that J.M. brandished during the robbery of C.M.
The firearm in the possession of J.M.
13The ASF sets out that the firearm found on J.M. is a Glock semi-automatic handgun with a barrel length of 114mm (“Glock handgun”) and that its serial number was obliterated. It meets the definition of a “restricted firearm” according to ss. 2 and 84 of the Criminal Code. The firearm also had an extended detachable box cartridge handgun magazine capable of holding more than 10 cartridges of ammunition. The magazine meets the definition of a “prohibited device”, according to s. 84 of the Criminal Code. Nine cartridges of ammunition were seized and some of them were test-fired using the Glock handgun. It is also admitted that they meet the definition of “ammunition”, according to s. 84 of the Criminal Code.
The arrest of Mr. Peters
14PC Hanson and PC Clendinning both testified that once the light turned green, Mr. Peters crossed George and was walking west on Richmond, but they were not sure where he went because a building obstructed their view. As I set out in my Charter Ruling, Mr. Peters walked to the entrance to the Petro Canada station located on the north side of Richmond and was standing by a hydro box when the officers found him.
The Evidence of C.M.
15On September 11, 2023, C.M. testified at the Preliminary Hearing. A lengthy summary of her evidence was entered as part of the ASF. Her evidence that has some relevance to the issues before me is as follows.
16C.M. was employed at the time in a criminal lawyer’s office as a paralegal student. In this role, she completed procedural appearances and appeared as an agent in court, scheduled court dates in set date court and filed documents for a criminal lawyer. She had worked on and observed trials involving gun offences.
17C.M. testified that on the Friday night before the robbery; October 21st, she went to a shisha lounge in Woodbridge. She was wearing a real fur coat and expensive jewelry including a Rolex, a couple of Cartier bracelets with diamonds and pearl earrings. She was also carrying a very expensive Chanel purse with an estimated current value of $13,000. She drove to the lounge in her car, a white Mercedes C-Class, SC3000 model that she estimated was valued at $60,000 when it was new. She parked in the relatively large parking lot facing the shisha lounge which was part of a strip mall which included a Tim Hortons, a furniture store and two restaurants in the plaza. When C.M. left the lounge at 3:00 am she left her car parked there because she had been drinking.
18C.M. spent Saturday at home. On Sunday, C.M. went with her boyfriend to pick up her car at 3 p.m. She stayed in Woodbridge for a little bit after retrieving her vehicle. She then proceeded downtown to 90 Sherbourne where her boyfriend lived. She recalled arriving at about 5 p.m. Upon arriving, she met her boyfriend downstairs who provided her with some money to buy groceries. C.M. testified that she then left and went straight to the Longo’s grocery store at the “Air Canada Centre” [what is now identified as Maple Leaf Square or Scotiabank Arena]. She parked in the underground parking lot, on the first level, right beside the entrance to get into the lot. After doing some grocery shopping, C.M. started driving back to 90 Sherbourne. She was alone in her vehicle but was on the phone with a friend using Bluetooth through the car’s built-in microphone and speaker.
19C.M. testified that there are two entrances to the outdoor parking lot at 90 Sherbourne, one from Richmond and one from Sherbourne. She entered the parking lot from Sherbourne and parked in one of the visitor parking spots. There was a back door nearby to access the building. She had planned on messaging her boyfriend to come down to help her with the bags of groceries she had purchased.
20When C.M. arrived at the parking lot, she was still talking to her friend on the phone via the car’s audio system. She did not notice anything out of the ordinary. When she parked, she was still on the phone with her friend. C.M. recalled rolling up the driver’s side window after she threw a cigarette butt out of the window. Her car was on and in park when she was about to send a text message to her boyfriend. She was looking down at her phone in the central console when she heard a noise and realized somebody was at her window trying to open the driver’s side door. She saw what she described as “a gun in my face” and a masked male telling her to: “Open the fucking door, open the fucking door.” She recalled her friend telling her to try to drive. She attempted to put the car in reverse because she wanted to get away, but she believed the male started hitting her window multiple times with the gun – hard – “like he wanted to break the window.” She opened the car door. It had been locked.
21C.M. recalled observing that the male looked very scared and that she could see the fear in his eyes. She explained she believed this to be the case because of the way his eyes looked, and he looked like he was scared. She thought that maybe he was going to shoot her if she didn’t do what he wanted. He was young and “his eyes looked juvenile.” She did not see his face.
22When C.M. opened the car door, she tried to run. She recalled that the male grabbed her by her hair, hit her over the head with the gun and dropped her to the ground. She recalled being grabbed by the hair and hit over the head twice and dragged around by her hair which caused her pain. She believed at that point the male was trying to put her back into her vehicle because he was opening the back door and telling her to get back in the car. C.M. testified that the gun was real and heavy and not a fake. She felt it when the male hit her over the head with it.
23C.M.’s friend was still on the phone while all of this was occurring. She believes this is why she was able to get away because the male may have thought that there was someone else in the car. She recalled that after the male was distracted, she was able to run. The male was chasing her with the gun, and she was screaming. C.M. testified that the male yelled: “Where the fuck are your keys? Where the fuck are your keys?” She responded: “They’re in the fucking car.”
24C.M. testified that when she looked back as she ran away, she saw the male running behind her with the gun pointed at her. She ran towards Sherbourne and the front of the building. C.M. recalled running past the other entrance to the 90 Sherbourne parking lot from Richmond and seeing an individual standing there:
So I ran past the entrance to Richmond and at that point I noticed there was an individual standing there [Mr. Peters]. I was screaming. And this person just didn’t have any care for the fact that someone was screaming … Because they were just looking in the other direction, not turning their head towards me. And I was making commotion. So I had reason to think they were together … I was screaming about the keys … Yelling, and I was running, and I ran past where – like the street where this person was standing. And they just, like, were stuck looking in the other direction, did not turn around once.
25C.M. did not remember shouting “help me” or anything about the gun as she ran by. C.M. recalled that the hands of the male in the laneway were down at his side. She had a clear unobstructed view of him as she ran by – “a straight line.” She could not see the individual in the alleyway from her car but “I went from my car down a straight path, and then at the end of the alleyway made a right.” She was running and being chased. She did not stop at the alleyway. She agreed it was very fast.
26C.M. believed the man in the alleyway was in on it:
I mean, if someone is – like prior to me even running and screaming, there was a commotion going on, and this person was standing in an alleyway which is pretty unusual, looking in one direction, not on a phone call, not doing anything, just standing there, and there’s commotion going on and you don’t even, like, turn and look back to see what exactly is going on?
27C.M. testified that the male with the gun seemed like he didn’t know what to do, and it seemed that whatever he was told to do didn’t go as planned. She agreed, when asked, that she was speculating that the male with the gun was told to do what occurred.
28There is no dispute that this individual in Cutter Lane was Mr. Peters. C.M. described the location of Mr. Peters in the laneway as being more towards the parking lot but not close. C.M. was very firm in her evidence that Mr. Peters was looking in the other direction and did not turn around to see what the commotion was about. Because he didn’t turn around to see what was going on, she felt that the two males were together. C.M. testified that she did not see the male with the firearm and the male in the alleyway interact.
29The chase ended when C.M. got closer to Sherbourne. She went upstairs to her boyfriend’s unit and called the police – 911.
30Once officers were on scene, C.M. returned to her vehicle. It was still running with its doors still left open and the key was still in the ignition. C.M. recalled that she had the same Chanel purse she took to the shisha lounge with her in her vehicle at the time of the robbery. She believed the male with the gun had gone into her car and had taken the purse as it was returned to her with its contents after police arrived on scene. She did not believe any other items were taken from her vehicle.
31C.M.’s vehicle was taken by police for forensic testing. She recalled asking the police to look for a tracker because she felt like she was being tracked and followed. C.M. believed she may have been targeted at the shisha lounge because she was wearing expensive jewelry. The police did not locate anything of note on the vehicle but did recommend that she take it to a third party for further inspection.
The GPS tracker
32The ASF sets out admitted facts concerning a GPS tracker that was found by a mechanic underneath C.M.’s vehicle, hidden near her right tire. A production order granted in relation to this tracker yielded information set out in the ASF. The name and email address of the person the tracker was registered to are set out in the ASF but there is no evidence as to who that person is and no evidence suggesting any connection between this person and either J.M. or Mr. Peters.
33DC Kirk Strilec testified at trial that the raw data from the tracker he received as a result of the production order was given to a police analyst, Amy Carrique. She did not testify but she used the raw data from the tracker to plot various locations of the tracker on two maps. Her maps were entered into evidence as part of the ASF. DC Strilec testified that the raw data from the tracker included location, date, and time. DC Strilec believes the times in the raw data are accurate, but he did not confirm this. The raw data of some 39 pages was entered into evidence as information received by the officer but not for the proof of the contents.
34It is admitted in the ASF that the GPS tracker was active between the hours of 4:57 a.m. and 11:25 p.m. on October 22, 2022, the day before the robbery, in the area of Zenway Boulevard and Highway 27 in Woodbridge, Ontario and it appears that information was plotted on a map by Officer Carrique. Mr. Coristine did not take issue that this shows C.M.’s vehicle being in the parking lot by the shisha lounge.
35It is also admitted that the tracker was active on October 23, 2022, the day of the robbery, between the hours of 4:57 a.m. and 11:48 a.m. in the same area of Woodbridge; Maple or Vaughan between the hours of 11:52 a.m. and 1:21 p.m.; and Downtown Toronto, specifically the areas of York Street and Sherbourne Street between 2:01 p.m. and 5:38 p.m. and it appears that information was also plotted on a map by Officer Carrique. As Mr. Coristine pointed out if C.M.’s vehicle was moving between 11:52 a.m. and 1:21 p.m., this was before C.M. said that she picked up her vehicle. It may be that as Mr. Linds submitted, her recollection of timing was wrong. However, Mr. Coristine also submitted that the data from the tracker is unreliable and does not show C.M.’s vehicle in the area of 90 Sherbourne at the time of the robbery and so it is not possible that the tracker was being used to follow C.M.
The Audio Statement of Sohil Aziz
36According to the ASF, Sohil Aziz was interviewed by phone by police on October 24, 2022, at 6:58 p.m. In an unsworn audio statement, he stated that he was on the phone with C.M. at 5:55 p.m. He heard her screaming for help over the phone. He also heard banging in the background. The phone call ended shortly thereafter. He tried calling back multiple times but there was no answer. He did not testify at the Preliminary Hearing held in this matter in September 2023.
The Evidence of Tracey Frohlic
37Tracey Frohlic testified under oath at the Preliminary Inquiry. A summary of her evidence is set out in the ASF. She recalled that on October 23, 2022, she had her window to her apartment open and she heard a woman screaming. She looked out the window and saw a woman (whom she did not recognize) running towards Sherbourne with a man chasing her. She recalled the female was screaming but could not understand what was being said. The man chasing her brought his arm up and he had a gun in his right hand. She did not get a good look at the gun. It was black. She believed the handle “stuck out” under 12 inches from the gunman’s right hand.
38Ms. Frohlic got her phone and called 9-1-1. Ms. Frohlic observed the man with the gun going back to the car, and rummaging through the front and the back, before running off. He went through the laneway between two buildings, to the west, which leads towards Richmond i.e., Cutter Lane. She did not at any point see anybody but the gunman and the victim of the robbery.
39As the man started to leave, it occurred to Ms. Frohlic to take some photos while on hold with 9-1-1. She grabbed her cell phone and took a series of six photos from the south side of her apartment which looked out into the back parking lot which were entered into evidence at trial. They all show J.M. at C.M.’s vehicle.
The video from 323 Richmond
40The police also recovered CCTV surveillance from a nearby residential condominium at 323 Richmond (“Richmond video”). It is admitted that the video captured views of both Sherbourne looking north and south. At approximately 5:57 p.m., C.M.’s vehicle can be seen coming eastbound on Adelaide, followed by a white SUV, then northbound onto Sherbourne. The white SUV followed C.M.’s vehicle until J.M. and Mr. Peters exited the rear passenger doors on each side.
The video from 16 York Street
41The police also recovered CCTV surveillance from 16 York Street (“York video”), opposite the location of the Longo’s grocery store where C.M. went grocery shopping on October 23, 2022. It is admitted that the surveillance captured at approximately 5:47 p.m. C.M. exiting the underground parking garage located at 55 Bremner Street (“Bremner”). As C.M. approached York Street (“York”), a white Hyundai Venue SUV, can be observed driving eastbound on Lakeshore Boulevard, turning north on to York, stopping behind a vehicle in the shoulder lane, before proceeding towards Bremner Street. Upon approaching Bremner Street, the white SUV and C.M.’s white Mercedes are at the intersection. The white SUV turned eastbound onto Bremner Street, then did a U-turn to face westbound on Bremner St, leaving a vehicle between it and C.M.’s vehicle. Both C.M. and the white SUV vehicle are last seen driving northbound on York. It is not admitted that the white SUV Mr. Peters exited from on Sherbourne was this white Hyundai SUV.
The 90 Sherbourne Video
42The 90 Sherbourne video is a crucial piece of evidence. Given there is no audio, I must consider the competing arguments made by counsel as to what the movements and gestures of J.M. and Mr. Peters that can be seen from the two views of the robbery reasonably mean. To do that, I was shown the video multiple times during the trial and closing arguments and I have carefully reviewed it as well during my deliberations. In setting out my findings I will not distinguish between the two views unless it is necessary. I have used them both to come to the following findings of fact as to what can be observed.
43C.M.’s vehicle can be seen turning into the parking lot behind 90 Sherbourne at about 17:57:10 [1], having been travelling north on Sherbourne. She drove her vehicle to the far west end of the parking lot behind the building and parked along a low wall. Within seconds, the white SUV with J.M. and Mr. Peters in the back seat stopped at the main entrance to the parking lot. Based on the 90 Sherbourne video, I find that Sherbourne is two-way traffic and the white SUV also travelling north, stopped in the turning lane, just before the intersection with Richmond.
44J.M. who was seated in the passenger seat on the driver’s side of the SUV can be seen opening his door even before the SUV was fully stopped. He got out of the vehicle and is almost at the sidewalk in front of the driveway to the 90 Sherbourne parking lot before Mr. Peters can be seen a couple of seconds later, getting out of the other side of the passenger seat. J.M. walked directly into the parking lot, but Mr. Peters walked south and cannot be seen on the video for a couple of seconds. Once Mr. Peters is visible again, he can be seen walking into the parking lot. Mr. Peters is wearing sunglasses and has his hoodie zipped up. J.M. was walking well ahead of Mr. Peters when they were walking into the parking lot and neither of them walked directly to C.M.’s vehicle.
45It is important to note that there is no sign at this point that J.M. has a large firearm in his possession. It was not visible at any time until he had it out just before the robbery of C.M. and at that time it would not have been visible to Mr. Peters.
46J.M. can be seen stopping next to a wall of a building, out of sight of C.M., and he turned back to look at Mr. Peters. J.M. then put his right hand and thumb into what I would describe as a position that looks like one used by a hitchhiker, pointing into the parking lot or perhaps in the direction of where C.M.’s vehicle went. With his right hand in this position, J.M. motioned to Mr. Peters by moving his hand back and forth twice (“thumb gesture”). Mr. Linds argues that this is the first interaction between J.M. and Mr. Peters and that J.M. was seeking direction from Mr. Peters. Mr. Peters does not appear to respond or acknowledge this gesture – there is no visible reaction from him at this time.
47Mr. Peters does not wait to see where J.M. is going and can be seen walking into Cutter Lane where for the most part, he can be seen pacing back and forth in the laneway. He would not be able to see C.M.’s vehicle from this position and J.M. would not have been able to see where Mr. Peters was. J.M. can then be seen walking towards C.M.’s vehicle which was parked with the driver’s door closed and the driver’s window up. As J.M. reached C.M.’s vehicle, he had the gun out in his left hand and as he got to the vehicle, he can be seen trying to open the driver’s side door. When he failed to do so he started banging the gun on the driver’s side window as C.M. testified to.
48At about 17:02:10, the garage view of the 90 Sherbourne video shows a man coming out of the rear door of the building. If Mr. Peters saw this man, he did not react in any way. Within seconds, C.M. opened the door of her car and J.M. pulled her out of the vehicle and the struggle between them that C.M. described in her evidence occurred. When J.M. appears to have been distracted, likely because, as C.M. believes, he heard her friend’s voice on her phone, C.M. was able to run, and J.M. followed her with the gun out, running in the direction of the driveway out of the parking lot onto Sherbourne.
49I have carefully reviewed the video at the point when C.M. ran past the opening to Cutter Lane. It appears that Mr. Peters looked back over his shoulder for a split second, but I am not able to see which way he was looking and whether he would have seen C.M. and/or J.M. and in particular if he saw J.M. with the gun chasing C.M. After this, Mr. Peters had his back to the parking lot again. However, what is clear is that when J.M. gave up the chase, J.M. walked to Mr. Peters who was in Cutter Lane and J.M. was still holding the firearm. Given the size of the firearm, I find that at this point Mr. Peters was aware that J.M. was in possession of a firearm. They appear to have a brief conversation but there is no way of knowing what was said. Mr. Linds submitted that this was the second interaction.
50J.M. returned to C.M.’s car and after rummaging through the front and back seats for about one minute, he stole the Chanel purse. Mr. Peters remained in Cutter Lane during this time and would not have seen any of this. J.M. then ran back towards Mr. Peters with the purse in his hand but once he turned down the laneway, I am unable to see if he had the purse out where Mr. Peters could see it or not. By the time J.M. ran out onto Richmond, Mr. Peters was out of sight, presumably having turned left on Richmond. There is no further evidence of their movements until they are seen by the CRU officers.
The Relevant Legal Principles
Party Liability
51The Crown’s theory is that Mr. Peters was the directing mind and conspired with J.M. to commit the robbery of C.M. Mr. Peters is alleged to have been an accessory to the robbery of C.M. and the firearms charges pursuant to ss. 21(b) and (c) of the Criminal Code in that it is alleged that he was aiding and abetting J.M. in committing the robbery. In short it is alleged that Mr. Peters was present at the robbery and was the directing mind of how the robbery should proceed.
52Before coming to my analysis, it is helpful to set out some general principles as to what the Crown must prove to establish party liability. Counsel provided a number of cases. The following set out the basic principles relevant to the circumstances of this case.
53In R. v. Briscoe, 2010 SCC 13, paras 14-16, the court set out what the Crown must prove in order to prove the actus reus and mens rea of aiding and abetting as follows:
14 The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking"[t]o aid under s. 21(1)(b) means to assist or help the actor ... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, para 26. …
15 … The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
16 The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, para 35, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). … [Emphasis added]
54The court in Briscoe went on to discuss the concept of wilful blindness, which Mr. Linds relies on, which I will come back to after considering whether the Crown has proven beyond a reasonable doubt the actus reus of aiding and/or abetting.
55In R. v. Dunlop, the Supreme Court of Canada held that:
mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.
56In R v Dooley, 2009 ONCA 910, para 118, Doherty J.A. stated:
The nature of the conduct that can amount to an act of aiding or abetting is coloured by the mental state accompanying that act. The Crown must prove that the alleged aider or abetter acted "for the purpose" of aiding or abetting - meaning that they acted with the intention of aiding or abetting the perpetrator in the commission of the crime. This requirement can only be met if the aider or abetter has knowledge of the crime that the perpetrator intends to commit. Without that knowledge, the alleged aider or abetter cannot act "for the purpose" of aiding or abetting the perpetrator in the commission of the crime: Criminal Code, ss. 21(1)(b), (c); [Citations omitted, emphasis added]
57Mr. Linds relies heavily on the Ontario Court of Appeal decision in R. v. Skeete, 2012 ONCA 874 in support of his position that Mr. Peters’ presence at the robbery is analogous to the defendant in that case. I will consider that argument once I make my final findings of fact.
Circumstantial Evidence
58The Crown’s case consists substantially of circumstantial evidence. There is no issue between counsel as to the relevant law in this regard. Many cases were referred to, but I begin with the decision from the Supreme Court of Canada in R v. Villaroman, 2016 SCC 33, paras 35-42, 50, where the court set out the governing law about drawing inferences from circumstantial evidence:
[35] ... 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.
[36] … a reasonable doubt, or theory alternative to guilt, is not rendered “speculative’ by the mere fact that it arises from a lack of evidence. … A 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.
[37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. I agree with the appellant that the Crown thus 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": R. v. Bagshaw, at p. 8. "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.
[38] Of course, the 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.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added in original]
[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage -- that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- a helpful way of describing the line between plausible theories and speculation.
[42] The second is from R. v. Dipnarine, 2014 ABCA 328, paras 22, 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences"; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[50] When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that "the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him": para. 47. … The judge's citation of McIver was intended to make the same point, i.e., that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct. As the Court said in Lifchus"a reasonable doubt must not be imaginary or frivolous"; need not be proof to an absolute certainty; and must be based on "reason and common sense": paras. 31 and 36. The burden on the Crown does not extend to "negativing every conjecture": R. v. Paul, at p. 191. [Emphasis added]
59If there are multiple exculpatory inferences arising from the evidence or absence of evidence, they must explain the evidence as a whole. In other words, a single exculpatory inference that does not explain the evidence as a whole cannot ground an acquittal. This principle was stated by the Court of Appeal in R. v. Wu, 2017 ONCA 620, para 15:
It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, para 13 are particularly apt:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, at p. 361. 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: Cote v. The King, at p. 76. [Emphasis added]
60In R. v. N.Y., 2012 ONCA 745, para 31, Blair J.A. stated that he found the observations of McEachern C.J.B.C. in R. v. To, para 41, concerning the assessment of competing inferences, apt:
It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.
Analysis and Conclusions
[The full analysis and findings of fact, as well as the application of the above legal principles to the evidence, are set out in the body of the judgment above. The court ultimately found that the evidence did not prove beyond a reasonable doubt that Mr. Peters was a party to the robbery, and he was acquitted of all charges.]
Disposition
110Mr. Peters would you please stand.
111For all of these reasons I find you not guilty of each of the ten charges set out in the Indictment.
Date: March 7, 2025
Written decision released: March 24, 2025.
1This is the time adjusted to actual time as set out in the ASF.