Ontario Superior Court of Justice

Court File No: CR-24-26
Date: 2025-06-09

Between:
His Majesty the King
Applicant
Ryan Mullins, for the Crown

and

Jamar Bailey
Respondent
Self-represented

Heard: March 17-31, April 1, 2025

Reasons for Judgment
D.E. Harris

Introduction

[1] Mr. Jamar Bailey is charged with robbery and several firearm offences. The allegation is that there was an online transaction to buy several PlayStation 5s and an X-Box arranged between the victim and a person using the Snapchat handle “cookiestoronto”. The day of the online conversation, as was agreed, a car with two men in it pulled up to the curb after nightfall at about 5:45 p.m. on December 22, 2021 in front of the victim’s house to complete the transaction. During the transaction, a skirmish broke out. One of the purchasers pulled out a handgun and pointed it at the seller and his brother who was assisting him. In the aftermath, the two people from the car made off with four of the five game consoles. As they were driving off, the passenger held his arm out the window and fired a shot straight up, presumably in celebration of the crime just committed. The police later recovered a 9 mm shell casing on the street, proving that the weapon was indeed a firearm as defined by the Criminal Code.

[2] Mr. Bailey was self-represented at this trial. The case against him consists of several bundles of circumstantial evidence. The crux of the Crown’s case is based on efforts to tie Mr. Bailey to the “cookiestoronto” Snapchat handle. It seems reasonably clear that the person who used this account was one of the two culprits. The person using this handle arranged for the transaction, including price and the location of the transaction where it in fact ultimately took place. In addition, there is evidence that Mr. Bailey regularly drove a black Mazda car very similar to the car observed at the scene of the robbery by two of the witnesses. Furthermore, a PlayStation 5 was found in Mr. Bailey’s home after his arrest several months later. His common law wife testified that it arrived there approximately one month after the date of the December 22, 2021 robbery.

[3] Mr. Bailey did not testify but he called several alibi witnesses to attest that he was elsewhere at the time of the robbery.

[4] In a bottom line ruling at the outset of the trial, I found that Mr. Bailey’s statement to the police had been proved voluntary beyond a reasonable doubt. It is true that the police witnesses downplayed the amount of force used in arresting Mr. Bailey. One of the two officers who physically arrested him testified that without him using any force, Mr. Bailey almost magically descended to the asphalt surface of the outdoor parking lot. But if we put aside the possibility of divine intervention, that is exceedingly unlikely. Two officers tackled Mr. Bailey to the ground. Mr. Bailey complained in the ensuing interview of having scraped knees and/or shins but was not seriously troubled nor was he uncomfortable. The fact is, this was an arrest of a person who had allegedly committed a robbery with a firearm. Despite the attempt to downplay it, the force used was proportionate to the risk to officer safety posed. And the injuries were minor and played no significant part in the giving of the statement.

[5] I have applied the voluntariness case law to the evidence, and in particular the cases of R. v. Oickle, 2000 SCC 38 and R. v. Tessier, 2022 SCC 35. I am convinced beyond a reasonable doubt that there was no oppression or inducements and that Mr. Bailey had an operating mind. The primary caution and right to counsel were properly given to Mr. Bailey. Mr. Bailey spoke to a lawyer before the interview. In the interview, he professed to be very confused by the allegations and adamantly denied them.

[6] Mr. Bailey was reluctant to give information quite a number of times during the interview. There were a number of attempts not to say anything on several topics. But in my view, the officer never stepped over the line drawn by the Supreme Court in R. v. Singh, 2007 SCC 48. Mr. Bailey’s will to remain silent and not divulge details sought by the police was not overborne nor was he subjected to any real unfairness. The officer used legitimate means of persuasion and persistence in order to get Mr. Bailey to respond to his questions. I ruled the statement had been proved admissible beyond a reasonable doubt.

[7] With respect to the other pre-trial motion—the Crown’s application to admit pictures and videos of handguns found on Mr. Bailey’s phone and computer—I dismissed this at the outset of the trial. None of these depictions could be connected to the 9 mm gun fired in the robbery getaway. That being the case, representations of guns on his devices to show that he was involved in this robbery at gunpoint was in the nature of the most general propensity evidence. Sad as it is, possession of guns is far too common in our community to generate any real probative value towards proof. The bad character inclination of this evidence far outweighed its meagre value towards proof of the allegation, even in a judge alone trial. It was inadmissible.

The “cookiestoronto” Evidence

[8] With respect to the documentary evidence in this case, I ruled previously that it was admissible. Proper notice was given under the Canada Evidence Act and the business record exception applies. There was a letter from Snapchat with respect to their deactivation policies that I regard as superfluous and will not rely on.

[9] William Escoffery testified that he advertised 4 PlayStation 5s and one X Box on Snapchat. In response to the ad, he received a message the same day from a Snapchat user using the moniker of “cookiestoronto”, agreeing to the price of $4320 in cash and setting up a time several hours later for completion of the transaction at a place very close to his address at 287 Conestoga Drive, Brampton. Part of the Snapchat conversation was introduced into evidence. The full conversation was not available, apparently having been lost or never gathered in the first place.

[10] In brief summary, at about 5:45 p.m. the passenger in the car pulled out the gun right after Mr. Escoffery, his brother Lamor Escoffery and William’s sister-in-law Alexie-Ann Douse loaded the consoles into the car. The seller never received the negotiated cash for the consoles. Travis Escoffery arrived home during the transaction and watched it from the driveway. A security video from the Escoffery house shows the consoles being brought out. One of the perpetrators can be seen at the very edge of the screen standing at the back of the car he arrived in. The loud gunshot can be heard towards the end of the video. The Escofferys utter shock and astonishment.

[11] The police were called soon after the robbery and when they arrived, William showed them the Snapchat conversation. Officer Feasby soon after logged on to the law enforcement section of the Snapchat website and posed an inquiry seeking information with respect to the “cookiestoronto” handle.

[12] Snapchat promptly provided the activation date for the account which was June 26, 2020. Snapchat also provided a list of IP addresses that the account “cookiestoronto” had accessed during the period of December 22 to 23, 2021, the time frame of the robbery. The list of IP addresses showed a Snapchat “Web Login” for “cookiestoronto” from December 22, 2021 at 8:20:43 p.m. The IP address associated with this login was “2607:fea8:f81:7f00:90b9:56f9:c3fd:9075”.

[13] Police determined by way of an internet search that this IP address belonged to Rogers Communications and is registered in the City of Brampton. The police were granted a production order to compel Rogers Communications to provide the subscriber information for the IP address.

[14] The results of the production order disclosed that the account associated to the IP address was registered to Leila Hunter of 26 Havelock Drive, Brampton. The modem and the service was provided by Rogers. Police ran the phone number associated to the account, which was registered to Chakeba Kelly, the accused’s common law wife. She confirmed this telephone number when she testified for the Crown.

[15] The evidence establishes beyond any question that the accused lived at the 26 Havelock Drive address with Ms. Kelly and that Leila Hunter was her grandmother and also lived there. The wealth of evidence proving the accused lived there included his admission in his statement, surveillance of him outside the residence, and the discovery of a laptop that was proved to be his laptop during the execution of the search warrant on that residence. Ms. Kelly testified that Mr. Bailey lived there. While there was evidence that Mr. Bailey was also associated with another address, it was quite clear that he did not live there. Mail from that address in Mr. Bailey's name was found during the execution of the search warrant at 26 Havelock.

[16] There was an uncle of Ms. Kelly’s who lived there for a time in the basement but it does not seem from her evidence or the other evidence that he was living there at the time. Nonetheless, given the passage of time between the events and the trial—almost four years—it is not an impossibility. It was difficult for Ms. Kelly to be precise.

[17] There also could have been a visitor who could have passed through at the time with their Snapchat handle connecting to the network in the home. It was close to Xmas and Ms. Kelly testified that there were often visitors. All that is relatively unlikely in my view but it is a possibility.

[18] When Officer Feasby contacted Snapchat and received the information back with respect to the IP address, unbeknownst to him, he violated Mr. Bailey’s Charter rights. Over two years after Officer Feasby’s contact with Snapchat, on March 1, 2024, the Supreme Court decided R. v. Bykovets, 2024 SCC 6. In essence, the Court held that a law enforcement request for information without judicial approval, breaches the right in s. 8 of the Charter to be free from unreasonable search or seizure.

[19] The prosecution, as part of their role as a Minister of Justice, when an accused is self-represented, is obligated to bring all potential Charter issues to the presiding judge’s attention: R. v. Tran, paras. 21-31; R. v. Kahsai, 2023 SCC 20, paras. 55-56. I should add that within the broad duty of fairness lies a duty of candour which falls upon a prosecutor. Candour, besides being an ethical imperative, is also a mainstay of good advocacy. Nonetheless, on the facts of this case, the police acted under manifest exigency. This was a case involving the firing of a handgun. Identifying and apprehending the perpetrator was of pressing importance. There was also clear good faith on the part of the police: R. v. Duarte, para. 65. They could not have known what the Supreme Court would conclude years after the fact. For these brief reasons, I dismissed the Charter issue.

[20] In this connection, the Crown did raise the failure of the police to perform a proper search warrant return. The officer in charge explained that she simply forgot to do it. Although the case law characterizes the lack of a return as a Charter violation, I see no significant prejudice in this case.

[21] In summary, the cookiestoronto culprit was soon after the robbery at the accused’s residence. While the cookiestoronto male could have been someone other than Mr. Bailey, it is unlikely. Nonetheless, if it stood alone, this “cookiestoronto” evidence could probably not prove the case against the accused. It connects the cookiestoronto handle to the accused’s residence but that is not sufficiently strong to prove guilt without more.

[22] But there is more evidence. Mr. Bailey was arrested on June 9, 2022. His cell phone was seized incident to arrest and ultimately, after a search warrant was obtained, the data was extracted. An abundance of data on the phone including photos of him, of his Social Insurance Card and emails confirm beyond doubt that the phone found on his person was his phone and was regularly used by him.

[23] The extraction of the phone revealed that Mr. Bailey’s Apple ID is dangles01@hotmail.com and his username is his first name, Jamar, or JT. There were two emails found on the phone from Snapchat to this address, one dating from May 24, 2021 and one from January 16, 2022 addressing the individual as “cookiestoronto” and “cookies” respectively. Seconds after the time of the cookiestoronto handle making contact with the network at 26 Havelock on December 22, 2021, an email was sent to Snapchat, cancelling the cookiestoronto account. That was at 8:20:52. A January 16, 2022 email from Snapchat advises that the account will be deleted if not reactivated in five days. When that evidence is placed in relief against the recency of the robbery evidence, it only increases the strength of the conclusion that the user behind the cookiestoronto account was behind the robbery. The too late attempt to cancel the account from 26 Havelock, Mr. Bailey’s residence, bolsters the already persuasive evidence that the accused was the person behind the cookiestoronto account.

[24] The close temporal connection between the robbery and the request to cancel the account is important. There would have been a natural apprehension that the cookiestoronto handle used to set up the transaction could be traced back to Mr. Bailey. It would have been reasonable to attempt to prevent this in order to escape suspicion and apprehension for the robbery. This is after-the-fact conduct evidence inclining towards guilt. I have instructed myself with respect to the notorious pitfalls of this species of circumstantial evidence: R. v. Calnen, 2019 SCC 6, paras. 106-126; R. v. Rodgerson, 2015 SCC 38; R. v. White, 2011 SCC 13.

Other Evidence

[25] There are two other important pieces of circumstantial evidence. William Escoffery identified the perpetrators’ car as a black Mazda 3. He had owned Mazda 3s before and was very familiar with them, although the year he said it was did not match correctly. Ms. Douse also identified the vehicle as a Mazda although she was not 100% sure.

[26] The evidence was uncontroverted that Mr. Bailey drove his common law wife's 2014 black Mazda 3 on a virtually daily basis. She testified to it, he admitted it in his statement and surveillance evidence confirmed it.

[27] Lastly, the presence in the home at 26 Havelock of a PlayStation 5 on its own was of little significance. Playstations are very common. Many people own them. However, what generates probative value in this instance is Ms. Kelly’s testimony that the console was introduced into the home in January of 2022, about a month after the robbery. The doctrine of recent possession applies although the inference in this instance, at least on its own, is not terribly strong: R. v. Kowlyk. That coincidence between the robbery and the appearance of the console generates some probative value. Also of note is that the transaction was negotiated as $880 for each of the PS5's and Mr. Bailey in his statement to the police said that he had bought the PS5 found in his home for the exact same amount: $880. This is unlikely to be a coincidence.

The Eyewitness Identification Evidence

[28] Most of the time in this trial which ran for about two and a half weeks was consumed by a focus on eyewitness identification evidence. For example, the evidence of William Escoffery extended over a full day with more than half of the time being attributed to questions with reference to eyewitness identification.

[29] In my view, this was not an eyewitness identification case. The lack of any value to the Crown’s case can be seen in several aspects. First, only one witness, William, was shown a photo line-up. He was the only one in a position to identify the perpetrators having had direct contact and conversation with them. The others clearly could not have identified either man, the driver or the passenger. Despite a very good likeness of Mr. Bailey being in the line-up as number 5, William did not identify him. He commented about this picture:

William: So this one's no.
Officer: Number 5?
W: Number 5, it's a no. …And, uh, no, he, he doesn't, he doesn't look like any of the, the two.
Officer: Do you need to go...
W: Yeah, it's just, it's just, um, it's just hard 'cause there's no like maybe pile, right? …So it's like similar skin tone. But the, the, the face, he, he kind of reminded me of the passenger, but it's, I don't think so

[30] This was clearly no identification at all. Although equivocal at one point, the gist was clearly that Mr. Bailey was not one of the perpetrators. No other interpretation of this interchange is reasonably available. The evidence was of no value towards identifying Mr. Bailey as one of the perpetrators. It is conceivable that a partial identification of some kind could provide some circumstantial evidence in some circumstances. But this was clearly not even a partial or tentative identification.

[31] Another reason why the eyewitness identification evidence was of no worth is that the descriptions of the two perpetrators were vague and of little particularity. Perhaps if an identification is very detailed and specific and fits the perpetrator, it can generate some probative value towards guilt even without the person being picked out of a line-up. But that was not the case here. Also, if the eyewitnesses had testified to a distinctive feature such as a large visible scar on his face or that he was extremely tall and this was accurate, that could be important, but again that was not the case here.

[32] Mr. Mullins argued that the witnesses had a good opportunity to observe. If true, because of the significant discrepancies with Mr. Bailey’s actual appearance—evidence that one of the perpetrators had corn rows for example--which I am convinced Mr. Bailey, based on defence evidence did not--this could weigh significantly against the Crown’s case: see R. v. Quercia, para. 16; Chartier v. Quebec (A.G.).

[33] In my view, looking at all the evidence including the evidence of the scene and the lack of detail in the eyewitnesses’ observations, the opportunity to observe was not good. It was nighttime and with no natural light as it was one of the shortest days of the year. The scene was lit only with a streetlamp. The video from the victim’s home does not show the scene of the robbery itself but does demonstrate the lighting. It was not particularly good.

[34] The duration of the opportunity to observe was not the classic fleeting glance. However, it was only at the maximum about five minutes or so and a good part of that was after William and his other family members started to become suspicious. At this point, their stress levels rose. And, finally, their descriptions were not detailed showing either that they were not acute observers or that their opportunity to observe with respect to external factors was poor, or both.

[35] In the final analysis, the descriptions being as vague as they were and there being no identification itself, they could fit the accused in that they identify him as a Black man, which he is, and as some of the witnesses said, the driver was quite tall, which he also is. The passenger the witnesses testified was quite short. There is also the description of the skin of both men, but there were some inconsistencies. It might be said that one of the men was quite light skinned, which Mr. Bailey is. However, unless very dark skinned and identified as such, skin tone could not be reliably read by streetlight. In any case, the descriptors denote a wide class of men in Peel region. They do not identify Mr. Bailey whatsoever. They do not exclude him either.

[36] In the context of this body of evidence, a request was made to have William Escoffery make an in-dock identification of Mr. Bailey. I prohibited this procedure. Other than the staff and me, Mr. Bailey was the only other male in court. The foundation of the identification and the opportunity to observe were poor and with no real substance. An in-dock identification particularly in the absence of adequate prior identification evidence and a good observation to observe, is of no probative value and creates only prejudice.

[37] In the oft quoted passage from the decision of R. v. Smierciak, Laidlaw J.A., in writing for the Ontario Court of Appeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence. His words are particularly useful to the review of this case (at p. 177):

…If a witness has no previous knowledge of the accused person, so as to make him familiar with that person’s appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. (Emphasis added)

[38] Also see R. v. Sutton; R. v. Goldhar. Similarly, in R. v. Miaponoose, para. 28, it was said,

In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender. Here, there were no exigent circumstances. No efforts were made to ensure some fairness to the process. The highly inappropriate procedure adopted can only have resulted in grave prejudice to the appellant. It also did nothing to assist the complainant and the community as a whole, both of whom have a substantial interest in correctly identifying the perpetrator of this offence.

[39] Although these comments pertain specifically to the investigative stage, they are applicable here to the adjudicative stage as well. In the present circumstances, in-dock identification with such a meagre foundation in the prior identification evidence would have been intolerably suggestive. It would have no probative value and would only lead to prejudice. It was for these reasons that I prohibited the in-dock identification proposed in accordance with precedent from the Court of Appeal: see R. v. Holmes, para. 40.

[40] In summary, the identification evidence in this case was of no real use either way. I do not rely on it.

The Defence Case

[41] The main defence was in the nature of an alibi. But Mr. Bailey did not testify. He called as witnesses Megan Bailey, his aunt, and his co-worker Jamie Cohen. Ms. Bailey works at the truck company which Mr. Bailey works for and which is owned by his uncle. Ms. Bailey is in charge of the office and takes care of all the paperwork, payments and everything else to do with administration. She verified work sheets that were admitted into evidence as well as time sheets.

[42] The key evidence came from Mr. Cohen. He worked with Mr. Bailey in the truck business. On the day in question, December 22, 2021, the two were working together making deliveries over a wide area of the province, including Sarnia and London. The time sheet admitted into evidence confirms this. Sometimes two people worked deliveries if there were heavy items to drop off, like a treadmill for example. That was true on this day. There were a lot of intricate details about where they parked during the day and how they submitted time sheets, and other similar matters. Mr. Cohen testified that they finished on December 22, 2021 at about 5 or 5:30 p.m. based on his memory. The time sheets show 5:30 p.m. I accept that if this is true, based on distance and driving times, it would be difficult for Mr. Bailey to commit the robbery charged against him.

[43] But there are two fundamental problems with this evidence. The sheets were filled out by the two men themselves, not by an independent source. They were self-generated. In my view, for this reason, they were unreliable. Further, Mr. Cohen admitted that he could not remember many of the specifics with respect to the day. That is not surprising. It was three and a half years ago. It was not until about six months after that Mr. Bailey was arrested. That was the earliest that Mr. Cohen could reasonably have specifically thought back to remember the specifics of December 22, 2021. Mr. Cohen frankly admitted in cross-examination that he did not have an independent recollection of the day.

[44] The self-generated nature of the time sheets and the lack of Mr. Cohen’s independent recollection of the day provide a weak alibi for Mr. Bailey. I do not believe the alibi evidence nor am I left in reasonable doubt by it: R. v. Tomlinson, 2014 ONCA 158, paras. 49-53.

Conclusion

[45] The cookiestoronto association with Mr. Bailey’s residence and the evidence linking this moniker to his cell phone construct a powerful circumstantial web of guilt around Mr. Bailey. The black Mazda 3 present at the scene, the same type of car that Mr. Bailey regularly drives, is a cumulative layer augmenting ultimate proof. It is exceedingly unlikely to be a coincidence that both Mr. Bailey’s phone and car were both closely connected to the robbery but that he had no involvement in it.

[46] I reject the defence alibi evidence. It is weak and unreliable. In my view, looking at all of the evidence, the cookiestoronto evidence together with the presence of the black Mazda 3 at the scene, although this evidence was not overly strong, leads to the case against Mr. Bailey being proved beyond a reasonable doubt. He was one of the perpetrators of the Escoffery robbery. I cannot, based on the evidence, nor does the prosecution ask me to find, whether he was the driver or the passenger who wielded the firearm.

[47] Turning to the counts in the indictment, count 1 charges robbery of William Escoffery. I find Mr. Bailey guilty as a principal or party. I find him guilty of count 2 for pointing a firearm. The robbery was a joint venture and I find beyond a reasonable doubt that there was an agreement to use the firearm in the course of the robbery. I also find him guilty of count 3 for being in a motor vehicle knowing that there was a firearm in the vehicle. Count 4, possession of a gun without a licence, and count 5, reckless discharge for firing the gun out the window, are personal to the person who actually possessed the gun. It is reasonable to conclude that the firing of the gun out the window was a spontaneous act by the passenger. Mr. Bailey must be found not guilty of those charges, counts 4 and 5.

[48] Those are the verdicts. Mr. Bailey is now free to pursue his abuse of process application if he is so inclined.

D.E. Harris
Date: June 10, 2025