CITATION: R. v. Stephens, 2026 ONSC 2629
OSHAWA COURT FILE NO.: CR-25-00016901-0000
DATE: 20260504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ROSHANE STEPEHNS and CHARLES WEIR
Defendants
O. Fitzgerald, for the Crown
S. Becker, for the Defendant, Roshane Stephens
T. Boutzouvis, for the Defendant, Charles Weir
HEARD: January 5-8, 12-14, 2026
REASONS FOR JUDGMENT
MCKELVEY J.:
Introduction
[1] The night of July 16, 2024 became a very frightening episode in the lives of the residents of a home on Rondeau Court in Oshawa. It is alleged that sometime after 10:00 p.m. that evening, a group of individuals committed a home invasion. The three individuals in the home were Paul Miller, Peggy Flack and Paul Miller’s nephew, Joshua Miller. Paul Miller was able to escape the home, went to a neighbour’s house and called 911. Police then responded. Upon discovering Paul Miller’s absence, the home invaders left the home and a short high-speed chase ensued. The high-speed chase was subsequently called off, but the home invaders’ car was monitored by a York Region helicopter. The car subsequently stopped on Knights Road where five individuals were seen fleeing from the vehicle. They then ran into a heavily forested and bush area. In this area the police subsequently arrested Roshane Stephens and Charles Weir together with two other individuals. Roshane Stephens and Charles Weir are charged with the following offences:
That they in committing an assault on Paul Miller caused bodily harm to him contrary to Section 267, Clause (b) of the Criminal Code;
That they did rob Paul Miller using a restricted or prohibited firearm contrary to Section 344(a) of the Criminal Code;
That they used an imitation firearm while committing an indictable offense of robbery against Paul Miller, contrary to Section 85(2) of the Criminal Code of Canada;
That they did rob Joshua Miller using a restricted or prohibited firearm, contrary to Section 344(a) of the Criminal Code;
That they did use an imitation firearm while committing the indictable offence of robbery against Joshua Miller, contrary to Section 85(2) of the Criminal Code;
That they did knowingly utter a threat to cause death to Peggy Flack, contrary to Section 264.1, subsection (1), clause (a) of the Criminal Code;
That they did break and enter a place, namely a dwelling house, with intent to commit an indictable offence, contrary to Section 348, subsection (1), clause (a) of the Criminal Code;
That they did use an imitation firearm while committing the indictable offense of breaking and entering a dwelling house with intent to commit an indictable offence, contrary to Section 85(2) of the Criminal Code;
That they with intent to commit an indictable offence, had their faces masked or otherwise disguised, contrary to Section 351, subsection (2) of the Criminal Code;
That they did, without lawful excuse, possess a prohibited or restricted firearm while knowingly not being the holder of a license permitting such possession and registration certificate for the firearm, contrary to Section 92, subsection (1) of the Criminal Code;
That they did, without lawful excuse, possess a loaded prohibited or restricted firearm without being the holder of an authorization or license permitting such possession and the holder of a registration certificate for the firearm, contrary to Section 95, subsection (1) of the Criminal Code;
That Charles Weir further stands charged that he did operate a motor vehicle while being pursued by a peace officer, and failed to stop the motor vehicle as soon as was reasonable in the circumstances, contrary to Section 320.17 of the Criminal Code;
And Charles Weir further stands charged that he did, without lawful excuse, possess a firearm while prohibited from doing so by reason of an order made on March 28, 2017, contrary to Section 117.01, subsection (1) of the Criminal Code;
And Charles Weir further stands charged that he did, without lawful excuse, possess a firearm while prohibited from doing so by reason of an order made on September 7, 2011, contrary to Section 117.01, subsection (1) of the Criminal Code of Canada.
Legal Principles
[2] The Defendants are presumed innocent of the charges in the indictment. This presumption of innocence stays with them throughout the trial and is only displaced if I am satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving the charges against the Defendants. The Defendants do not have any obligation to prove anything.
[3] Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[4] While likely or even probable guilt is not enough, proof to a level of absolute certainty is not required, as that standard is impossibly high. However, while absolute certainty is an impossibly high standard, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[5] In a case like this the evidence is largely circumstantial. In that situation the Crown must prove that the Defendants’ guilt is the only reasonable inference available on the evidence. See: R. v. Villaroman, 2016 SCC 33, and R. v. Choudhury, 2021 ONCA 560, at para. 19. In considering circumstantial evidence it requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may be at times difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based on logic and reason.
[6] The analysis must be based on the totality of the evidence before the court. See R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25, at para. 81. If, after all the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser included offence, as the case may be.
[7] An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negative every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from proven facts. This is in accordance with the Villaroman decision at para. 35, and R. v. Robert (2000), 2000 5129 (ON CA), at para. 17. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence. See R. v. Ali, 2021 ONCA 362, at paras. 97 and 98.
[8] Ultimately, in order to convict a Defendant of the offence I must be sure that the Defendant has committed the offence. If I am not sure, I must acquit.
[9] Where there is no direct evidence of mens rea, evidence establishing the actus reus may also provide circumstantial evidence of mens rea. In those circumstances, a conviction only results where the inference supporting existence of the requisite mens rea is the singular reasonable inference available based on the totality of the evidence.
[10] Section 4(3)(b) sets out the provisions relating to possession. This section provides that where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[11] In the British Columbia Court of Appeal decision in R. v. Chualna, 2003 BCCA 650, the Court noted at para. 25 that the elements of possession as defined in s. 4(3)(b) of the Code are knowledge and consent. The Court stated:
If knowledge and consent are proven, control over the property is deemed to exist.
[12] In the present case witness identification of the Defendants could not be made at the time of the home invasion. We therefore cannot attribute any particular action by any of the home invaders to a particular individual.
[13] Section 21 of the Criminal Code provides as follows:
Parties to offence
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention
(2) 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.
[14] Section 21 was recently considered by the Ontario Court of Appeal in R. v. Mohamed, 2025 ONCA 611, as well as in R. v. Saboon, 2026 ONCA 113. In R. v. Mohamed, the Court notes that under s. 21 principals and co-principals are sometimes referred to as primary actors, whereas aiders and abettors, as well as those who are captured by way of a common unlawful purpose, are sometimes referred to as secondary actors. Under s. 21(1)(a) individuals who actually commit the offence are referred to as principals. Section 21(2) operates differently. It extends liability to those individuals who are not principals, aiders or abettors to offences. It applies to situations where the accused has agreed that with at least one other person to commit an offence and, while carrying out that agreed upon unlawful purpose, at least one or more of the participants to the original agreement (but not the accused) commits a different offence. Section 21(2) will apply if the accused knew (or, in the case of offences not requiring specific intent, ought to have known) that one of the participants to the agreed upon unlawful purpose would likely commit the incidental offence while pursuing the common unlawful purpose. As the Court states at para. 41,
Therefore, s. 21(2) extends responsibility for incidental offences – offences other than the offence the accused originally agreed to participate in – provided that the incidental offence is committed “in carrying out” the originally-agreed-upon unlawful purpose and the accused had the requisite degree of mens rea. [Authorities Omitted.]
Accordingly, s. 21(2) liability breaks down nicely into three elements, categorized as: (1) agreement (the original unlawful purpose); (2) offence (the offence committed that is incidental to the originally-agreed-upon unlawful purpose); and (3) knowledge (subjective or objective foresight of the incidental offence).
To establish agreement, the Crown must prove that there was a common intention between at least two people to jointly carry out a common unlawful purpose: R. v. Gong, 2023 ONCA 230, 425 C.C.C. (3d) 122, at para. 32. Of course, the common unlawful purpose must constitute a criminal offence: Cadeddu, at para. 56. Therefore, it is the act of agreeing upon the commission of a criminal offence.
To establish the offence, the Crown must prove that at least one of the individuals (not the accused) who was part of the original agreement committed a different offence while carrying out the original agreement: Gong, at para. 32; Cadeddu, at paras. 59-60. This is often referred to as the “incidental offence”, and it must be different from the agreed-upon offence: Simon, at para. 42. Although not the offence intended by the parties, the incidental offence must be related to the original unlawful purpose in that it was committed in the course of carrying out the initial agreement.
[15] In the present case it would appear that the original unlawful purpose was a robbery. The other offences committed would include the other offences charged, such as assault, uttering death threats, the use of masks and firearms.
[16] Section 21(1)(b) is an alternate route to potential liability. As noted by the Court of Appeal in Mohamed, it is sometimes difficult to know the line between a principal and an aider. At para. 110, the Court states,
Principal liability is established where the Crown proves that an accused committed the requisite act along with the requisite intention. In a co-principal scenario, an accused does not need to commit the entire criminal offence provided that the co-principals together commit the offence and share the requisite intention.
[17] As an aider, however, the aider must do something to assist the principal in the commission of the offence. As noted by the Court at para. 114, performing the role of a get-away driver would clearly meet that requirement. With respect to the mens rea, the Court states at para. 115,
For purposes of the mens rea, there are two components: intention and knowledge. The aider’s intention must be to help the principal commit that offence. As emphasized in Briscoe, at para. 16, intention is not to be confused with desire. Therefore, even if the aider does not want the principal to commit the offence, the aider must intend to assist the principal in its commission. Secondly, the aider must know what offence the principal intends to commit. As a matter of “common sense”, this knowledge is a prerequisite to proof of intention: Briscoe, at para. 17; Maciel, at para. 88.
[18] A further legal principle which arises in this case is that of after-the-fact conduct. In R. v. White, 1998 Carswell Ont. 2561, the Supreme Court of Canada considered this issue. It held that under certain circumstances the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. At para. 19 of their decision the Court stated,
For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance or attempted to hide or dispose of incriminating evidence.
As Weiler J.A. noted in R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238:
Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.
Evidence of this kind is often called “consciousness of guilt evidence”, since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and it’s use should be discouraged. “Consciousness of guilt” is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself. Moreover, the words “consciousness of guilt” suggest a conclusion about the conduct in question which undermines the presumption of innocence and may prejudice the accused in the eyes of the jury. As has been suggested by the Ontario Court of Appeal, to the extent a general description is necessary, the use of more neutral language such as “evidence of post offence conduct” or “evidence of after-the-fact conduct” is preferable: Peavoy, supra, at the p. 238. Regardless of which phrase is used, however, the focus of the jury should be kept on the specific items of evidence at hand – the act of flight, the false statement, as the case may be – and on the relevance of those items to the ultimate issue of guilt or innocence.
Evidence Adduced at the Trial
[19] During the course of trial the following witnesses gave evidence:
Paul Miller – Resident of home on Rondeau Court
Peggy Flack – Resident of home on Rondeau Court
Erica Meyer – Next door neighbour
Jeff Williams – Police Officer
Adam Kowalski – Police Officer
Michael Lusty – Police Officer
Denzel Moran-Weekes – Police Officer
Sean Firth – Police Officer
Kristofer Dupont – Police Officer
10.Scott Logan – Police Officer
11.Nicole Hartry – Police Officer
12.Christopher Tillsely – Police Officer
13.Gerald Alderson – DNA analysis
[20] In addition there were two agreed statements of fact which were introduced into evidence.
[21] Neither Defendant elected to call evidence at the trial.
[22] Paul Miller gave evidence that he was lying in bed in his bedroom upstairs with Peggy Flack in his semi-detached home. In the late evening a knock was heard on the door. He went downstairs and looked out the side window of the door. He saw a person leaning against the screen door outside. He described this person as “tight against the door” and that “he doesn’t really want me to really see him”. Mr. Miller then opened the door and the individual on the outside pushed his way in with a gun in his hand. Mr. Miller then recalled that two other men came and pushed their way in as well.
[23] Mr. Miller testified that one guy jumped up and sucker punched him right in the mouth. The first guy who came in the door got him on the stairs and held his head down on the stairs.
[24] Mr. Miller described how all three of the individuals who entered his home at that time were black and were also dressed all in black. They had covers on their faces.
[25] Once they were in the house the intruder with the gun told him “don’t look at me or I will shoot you”. The other two intruders took off upstairs at that point.
[26] The intruder holding him down was saying “where is the money?” Mr. Miller responded “what money? I don’t have any money”.
[27] Mr. Miller recalled that the person with the gun threatened to shoot him “three or four times for sure”.
[28] While his head was being held down on the stairway inside the front door, Mr. Miller recalled that the person with the gun was pointing it at his head. At this point he was bleeding from the injuries to his mouth where he had lost some teeth.
[29] According to Mr. Miller he was held near the bottom of the staircase and being held down by the man with the gun. He did recall Peggy Flack coming down the stairs and passing him. At some point the intruders asked him where the money was and he told them that he did not know what they were talking about but that “maybe you’re looking for something in the garage”. That’s when the intruders started to go into the garage.
[30] Mr. Miller recalled that all of the intruders were black and dressed all in black including black gloves.
[31] Because Mr. Miller was the last one in line going towards the garage he was able to slip out the front door and go to his neighbours home. He saw a car that had backed into his driveway. He could not see whether anyone was in the car. At his neighbours house he was let in and he made a 911 call for assistance.
[32] He then heard someone say “we got to get out of here, we’ve got to go” and he saw the intruders running to the car, jumping in and taking off.
[33] Mr. Miller recalled that during the home invasion he was told, “you’re probably going to die tonight” and “I’m going to shoot you”.
[34] Mr. Miller recalled that initially there were a total of three intruders who came into his home. However, there was “another guy who came in later but he wasn’t in the first – when they rush the door”. In total, Mr. Miller testified personally that he saw a total of four intruders. He also recalled that a couple of the intruders went down to the basement and came back up to the main floor with his nephew, Josh.
[35] In cross-examination Mr. Miller was shown a photograph of Mr. Stephens who was wearing a grey tracksuit. He agreed that this was not a person dressed all in black.
[36] Mr. Miller was also cross-examined about an assertion that he had arranged to hand over a pink suitcase full of money on July 16, 2024. He denied this assertion. Also in cross-examination Mr. Miller was questioned about prior thefts that had occurred from his property. It does appear that there were some thefts that had occurred earlier. This appeared to be at odds with evidence given by him that he lived in a quiet neighbourhood.
[37] Mr. Miller also was questioned about a request from the police to go to the station that evening to give a statement. He declined that opportunity and also told Peggy that they did not have to go to the station that night but could go on the following day.
[38] Peggy Flack testified that she was in bed with Mr. Miller. After Mr. Miller left the bedroom the next person who came in was a large brown man together with two other men who were all dressed in black and had coverings on their face. The man who came into her room told her to get on the floor, “shut up and don’t look”. He asked her where the money was and she responded “what money?”. The intruder then responded “my boss said you have $400,000 of his money”. She told him that she didn’t. The man kept saying “somebody’s going to get shot and you guys are going to die”. He then asked where the pink suitcase was and she told him that she didn’t know what he was talking about.
[39] According to Ms. Flack she was told at least four times that someone was going to get shot.
[40] While she was upstairs with the man Ms. Flack stated this man did in fact have a gun to her head.
[41] Ms. Flack was asked to describe the gun. She stated that it was a handgun and similar to what a police officer has. The top of the gun had a slide. The gun was black in colour. The gun was held next to the right temple of her head.
[42] While she was being held upstairs the two other persons who came with him were going through the upstairs bedrooms.
[43] Ultimately Ms. Flack was taken downstairs by the intruder who had been with her. She did not notice Mr. Miller as she was coming down the stairs to the main floor.
[44] Ms. Flack was asked how many intruders were in the home. She initially stated that she saw five. There was the first person with the gun who was with her. There were two others going through the bedrooms on the top floor. And she was pretty sure there were two others downstairs getting Mr. Miller’s nephew, Josh. The information, however that Josh was brought upstairs by two intruders came from comments that Josh Miller told her and because it is hearsay evidence the Crown confirmed that they were not going to be relying on that information.
[45] Ms. Flack confirmed that all of the intruders she saw were dressed in black from head to toe. She was shown a picture of Mr. Stephens wearing a grey tracksuit. She confirmed that she didn’t recall seeing anyone wearing a tracksuit like that in her house.
[46] Following the home invasion, Ms. Flack stated that she picked up broken teeth from the bottom of the stairway to the ground floor. They were about three steps from the bottom. She also had to clean up blood which was in the same location.
[47] Erica Meyer lived in one of the neighbouring houses. She was an impressive witness and gave her evidence in a calm and straightforward manner. When she was unsure of an answer she did not hesitate to say so.
[48] Ms. Meyer recalled that Mr. Miller came to their front door. Her husband answered the door. She was at the top of her stairs because she was trying to see what was going on at the front door. She described Mr. Miller as scared and frantic and noticed that he was bleeding and had a rag covering his face. She heard Mr. Miller downstairs talking to her husband and later with the police. She went into her daughter’s bedroom at the front of the house. She looked through the window of her daughter’s bedroom and could see a car running in Mr. Miller’s driveway. The driver’s door was open as was the passenger rear door. She described the car as silver dark grey. It was backed in to the driveway. Initially she did not see anyone near the car. Subsequently, however she could see people running towards the vehicle and she heard someone say “we’ve gotta go”. She testified that she saw five people get into the car but could not tell the colour of skin that the five people had. She stated it was dark and they had dark clothing on. She also noted that the individuals were wearing dark masks. She estimated that about a minute or two passed between the time she first saw the car and when the five individuals got into the car. She was about 150 feet away.
[49] Ms. Meyer stated that the person who said “we’ve gotta go” said it loud enough that she could hear it through the window of her daughter’s bedroom which was opened a crack. They sounded panicked because the individuals were basically sprinting to the car while they were saying it.
[50] Ms. Meyer was cross-examined on her evidence that she saw five individuals. She acknowledged that she definitely saw four, “but in the heat of things I could have swore I saw five”. When questioned as to whether it could have been four she stated “I’m confident I saw five if that’s better for you”.
[51] Ms. Meyer was referred to a statement she gave to police where she told the officer “four or five guys”. She had acknowledged making that statement and that “at that time I wasn’t sure”.
[52] The Defendant Stephens takes issue with the evidence of the complainants as to whether there was a home invasion. He submits that aspects of the evidence of Paul Miller and Peggy Flack were confusing and at times evasive. Simple issues such as the nature of the relationship between Mr. Miller and Ms. Flack produced convoluted and evasive answers. He suggested more serious issues such as the history of robberies and break-ins at the home led Mr. Miller to become guarded and obstructive. The Defendant therefore submitted that there were serious credibility issues. I do not accept the defence position in this regard. The issues on which the defence argues that Mr. Miller and Ms. Flack had inconsistencies have no bearing on what happened during the evening of July 16. Further, the evidence of both Mr. Miller and Ms. Flack are corroborated by other independent evidence. There is the physical evidence of blood which is clearly seen in photographs near the bottom of the staircase on the ground floor where Mr. Miller says his face was held by one of the intruders. There is also a photograph of Mr. Miller after the event with several missing teeth.
[53] There is also the evidence of the Glock 27 firearm which was found in the wooded area the day after the home invasion. The description of the Glock 27 is consistent with that given by Ms. Flack.
[54] There is also the evidence of Erica Meyer that she saw five individuals (and based on an earlier statement, possibly four) running from the home into the car which had been backed into Mr. Miller’s driveway after someone yelled “we gotta go”.
[55] There is also the evidence that five individuals sped away in a stolen vehicle from Mr. Miller’s home.
[56] All of this leads me to the conclusion that this was a frightening home invasion of Mr. Miller’s home and that his and Ms. Flack’s evidence as to what occurred during the home invasion represents their best recollection of what occurred. I find Mr. Miller’s, Ms. Flack’s and Ms. Meyer’s evidence credible on the events surrounding the home invasion. In summary, I am satisfied beyond a reasonable doubt that a home invasion did occur on the evening of July 16, 2024 as described by Mr. Miller, Ms. Flack and Ms. Meyer. Some of the details of the home invasion are not entirely clear as set out below.
[57] There are legitimate issues raised about some of the details of the home invasion. For example the number of intruders is not entirely clear and there is also an issue as to what the intruders were wearing and whether they were in fact dressed all in black. Given that both Mr. Miller and Ms. Flack described this as a very frightening experience and that all of the intruders appeared to be wearing masks, it is not surprising that there are some facts about the home invasion which are not entirely clear.
[58] The vehicle carrying the home invaders was a silver Acura which was used by the home invaders to escape. It was owned by someone unrelated to any of the home invaders and who reported that it was stolen. Further, the license plates on the Acura were also stolen and not assigned to that vehicle.
[59] Mr. Miller’s call to 911 was initiated at 22:41 on the evening of July 16. In the 911 call Mr. Miller says he sees the car with the home invaders leaving at 22:44:49. A minute later at 22:45:17 the vehicle is observed and tracked by a police helicopter. The police helicopter tracked the suspect vehicle from the Rondeau Court area to Knights Road where it was abandoned. The video from the helicopter shows that five individuals fled from the vehicle. One person went to the left towards a housing area near 730 Cedar Street. The other four individuals ran deeper into a green space which was heavily covered by bush and trees. There was, however, a bike trail which ran through the area. On the helicopter video the suspect alleged to be Mr. Weir appears to make a throwing motion to his right. On the next day police located the key fob for the suspect vehicle near where the throwing motion had been made.
[60] Police on the ground are then dispatched to the area where the suspects from the car were seen fleeing. The police arrest four individuals in that area. At least one of the individuals who ran from the car is left unaccounted for.
[61] One of the defendants, Mr. Weir, was observed by Sgt. Firth going south on Cedar Street near 730 Cedar. He observed Mr. Weir was sweating and was carrying a dark blue mask. He was dressed in dark clothing. He detained Mr. Weir at 22:50 hours.
[62] In a separate video Mr. Weir can be seen in the area of 730 Cedar Street. He is observed throwing a glove into a trash bin. Despite efforts to locate this glove later, the glove could not be retrieved. A black glove was, however, retrieved nearby. According to the Agreed Statement of Facts, Charles Weir provided a DNA sample that was analysed by the Centre of Forensic Sciences and Mr. Weir could not be excluded as a contributor to the DNA located on the “inside surface” of the black and brown gloves seized by Detective Constable Nicole Hartry on July 17, 2024 from the area around 730 Cedar Street.
[63] In his final submissions Mr. Weir conceded that he was the driver of the silver Acura. There is no reason to doubt this admission. The evidence is overwhelming that Mr. Weir was the driver of the getaway car. His throwing motion which is seen on the helicopter video and the discovery of the key fob in that location on the day after provides cogent evidence that he had the key to the vehicle. There is also his DNA found on the black glove found near 730 Cedar. He was wearing all black clothing and was carrying a mask at the time of his arrest: all of these features reinforce the conclusion that he was the getaway driver. Mr. Weir argues, however that the Crown has not proved beyond a reasonable doubt that Mr. Weir had foreknowledge of any particular offence that might be committed. The Crown has not proven beyond a reasonable doubt that Mr. Weir was a party to the offences charged or formed a common intention to commit the offences. He asserts that the Crown has not proven that he was ever inside the residence or that he ever held a gun or imitation weapon. He argues that the Crown has not proven that he had knowledge of the presence of guns and that on the facts of this case it was not foreseeable that guns would be present and/or used. Mr. Weir therefore argues that he can only be found guilty of failing to stop for police as part of the police chase leading to the abandonment of the Acura vehicle at 15 Knights Road.
Were the home invaders guilty of the charges against Mr. Stephens and Mr. Weir?
[64] Because all of the home invaders covered their faces it is not possible to attribute any particular action to any one particular person. It is, however, still a requirement under s. 21 that the Crown prove beyond a reasonable doubt that one of the invaders was guilty for each of the charges made against the accused.
[65] With respect to Count 1, the Crown is required to establish that one of the home invaders committed an assault on Mr. Miller causing him bodily harm contrary to s. 267(b) of the Criminal Code. Under s. 265(1)(a), a person commits an assault when without the consent of another person he applies force intentionally to that other person, directly or indirectly. I accept the evidence of Paul Miller that very shortly after he opened the door three men entered the house and one of these people punched him right in the mouth. This constitutes an assault under the Criminal Code.
[66] Under paragraph 9 of the Agreed Statement of Facts it was agreed by the parties that the injuries suffered by Paul Miller on July 16, 2024 at his residence amount to bodily harm. I therefore conclude that the Crown has proved beyond a reasonable doubt that one of the home invaders committed an assault on Mr. Miller causing him bodily harm contrary to s. 267(b) of the Criminal Code.
[67] With respect to Count 2, it is asserted that one of the home invaders robbed Paul Miller using a restricted or prohibited firearm contrary to s. 344(a) of the Criminal Code of Canada.
[68] Under s. 343(c) of the Criminal Code, everyone commits robbery who assaults any person with intent to steal from him. Under s. 344(a), every person who commits a robbery is guilty of an indictable offence and liable if a restricted firearm or prohibited firearm is used in the commission of the offence. I have previously accepted Mr. Miller’s evidence that he was assaulted and I further accept his evidence that the home invaders demanded money. I also accept that he was held down by one of the invaders who had a gun. In R. v. Gordon, 2017 ONCA 436, the Court of Appeal dealt with a situation where one of the robbers pointed a handgun at the victims and threatened to shoot them if they attempted to escape. The police did not recover the alleged weapon. In finding that there was sufficient evidence that the trial judge could infer that the gun used in the robbery was a real gun capable of firing bullets the Court of Appeal stated,
There was ample evidence from which the trial judge could infer that the gun used in the robbery was a real gun capable of firing bullets. Certainly, the victims thought it was real and the robbers acted as if it were real. A trier of fact is entitled, although clearly not obligated, to take a robber at his word when, in the course of the robbery and to subdue the victims, the robber points what appears to be a gun at the victim and threatens to shoot them. It is a fair inference that the threat is not an idle one and that the robber has the means at hand to make good on the threat.
[69] In this case, however, only one restricted or prohibited firearm was identified after the event. There were two victims both of whom were threatened with a firearm or imitation firearm. I cannot be satisfied beyond a reasonable doubt that the restricted or prohibited firearm was used against Mr. Miller as opposed to Ms. Flack. I therefore conclude that the Crown has not proved beyond a reasonable doubt that one of the home invaders is guilty of robbery under s. 344(1)(a) of the Criminal Code. I am, however, satisfied that the Crown has established beyond a reasonable doubt that one of the home invaders did commit the lesser and included offence of robbery pursuant to section 343(c) of the Criminal Code.
[70] With respect to Count 3, it is alleged that one of the home invaders used an imitation firearm while committing the indictable offence of robbery against Mr. Miller contrary to s. 85(2) of the Criminal Code. As I will note later in these Reasons, I cannot be satisfied beyond a reasonable doubt that an imitation firearm was used by one of the home invaders. This Count is, therefore, dismissed
[71] With respect to Count 4, it is alleged that at least one of the home invaders robbed Joshua Miller using a restricted or prohibited firearm contrary to s. 344(a) of the Criminal Code. Joshua Miller was not called as a witness in this case and no one gave evidence that he was robbed as part of the home invasion. The Crown has, therefore, not proved beyond a reasonable doubt that anyone who was part of the home invasion was guilty of this offence.
[72] With respect to Count 5, it is alleged that an imitation firearm was used while committing the indictable offence of robbery against Joshua Miller contrary to s. 85(2) of the Criminal Code of Canada. As with Count 4 there is no evidence that Joshua Miller was robbed as part of the invasion. This Count is, therefore dismissed as well.
[73] With respect to Count 6, it is alleged that one of the home invaders uttered a threat to cause death to Peggy Flack contrary to s. 264.1(1)(a) of the Criminal Code of Canada. Under this section everyone commits an offence who knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person. I accept the evidence of Ms. Flack that the person who confined her kept saying, “somebody’s going to get shot and you guys are going to die”. I therefore have concluded that the Crown has proved beyond a reasonable doubt that one of the parties to the home invasion is guilty of that offence.
[74] With respect to Count 7, it is alleged that one or more of the home invaders did break and enter the dwelling house with intent to commit an indictable offence contrary to s. 348(1)(a) of the Criminal Code. This section provides that everyone who breaks and enters a place with intent to commit an indictable offence is guilty of an offence. Under s. 344(1)(a) every person commits robbery is guilty of an indictable offence and liable if a restricted firearm or prohibited firearm is used in the commission of the offence. As will be noted subsequently, I have found that a restricted or prohibited firearm was used during the commission of the home invasion. There is also no doubt that the home invasion constituted an unlawful breaking and enter. I have therefore concluded that the Crown has proved beyond a reasonable doubt that one or more of the home invaders is guilty of this offence.
[75] With respect to Count 8, it it is alleged that one of the individuals involved in the home invasion committed the indictable offence of breaking and entering a dwelling house using an imitation firearm. As will be noted subsequently in these Reasons, I have not been able to conclude beyond a reasonable doubt that an imitation firearm was used. This Count is therefore dismissed.
[76] With respect to Count 9, it is alleged that one of the home invaders did, with intent to commit an indictable offence have their faces masked or otherwise disguised contrary to s. 351(2) of the Criminal Code. I accept the evidence of Mr. Miller and Ms. Flack as well as Ms. Meyer that the home invaders were all wearing dark masks. The obvious intent of wearing a dark mask when breaking and entering in the presence of people within the home is to prevent any possibility of their identities being compromised during the course of the home invasion. I therefore conclude that the Crown has established beyond a reasonable doubt that this offence has been established.
[77] With respect to Count 10, it is asserted that one of the home invaders did, without lawful excuse, possess a prohibited or restricted firearm while knowingly not being the holder of a license permitting such possession and a registration certificate for the firearm contrary to s. 92(1) of the Criminal Code. I accept the evidence of both Mr. Miller and Ms. Flack that both were threatened with a firearm during the course of the home invasion. In this case a firearm was found in the wooded area west of 730 Cedar Street the day after the home invasion. The Glock 27 handgun was found in the wooded area abandoned on the following day. It matches the description given by Ms. Flack of the firearm which was used against her. No persons other than the individuals suspected to be part of the home invasion were found in the wood area on the night of the invasion. There is no sign such as rust or other indicia that the Glock 27 firearm had been there for an extended period of time. The firearm was located in the general area where the suspects were noted to be travelling on the night before. In her evidence Ms. Flack described the gun which was held to her head. She stated that it was a handgun and similar to what a police officer has. The top of the gun had a slide. The gun was black in colour and held next to the right temple of her head. The inference I draw is that the gun found on the following day by police was in fact a gun used in the home invasion. Under the Agreed Statement of Facts both parties agreed it is a prohibited firearm under the Criminal Code. There was no evidence that any of the home invaders had a license for the firearm. In these circumstances I find that the Crown has proved beyond reasonable doubt that a prohibited firearm was used during the course of the home invasion.
[78] Count 11 asserts that the prohibited firearm was loaded during the course of the home invasion. I am satisfied that the Crown has proved this offence beyond a reasonable doubt. This is consistent with the Agreed Statement of Fact that the Glock 27 was loaded with 12 rounds of ammunition with one round located in the Glock 27’s chamber when the Glock 27 was located and seized by the Durham Regional Police Service.
[79] Counts 12, 13 and 14 relate only to the conduct of Charles Weir and will be dealt with separately.
[80] In summary, I have concluded that the Crown has proved beyond a reasonable doubt that the following charges were committed during the home invasion: Counts 1, 2 (on the lesser and included offence of robbery pursuant to s. 343(c) of the Criminal Code), 6, 7, 9, 10 and 11.
The Charges Against Mr. Weir
[81] Mr. Weir argues that the Crown has not proven beyond a reasonable doubt that Mr. Weir knowingly assisted in the offences committed at the home on Rondeau Court. He argues there is no evidence that he knew or ought to have known that an offence was going to be committed. Alternatively he suggests that if the Crown has proven that Mr. Weir was a party to an offence, the Crown has not proven that the offence was going to be a robbery as opposed to a theft. He argues that he is not culpable for any offence relating to violence and threats that occurred inside the residence. There is no evidence that Mr. Weir was one of the parties who entered the residence. In fact, Mr. Weir argues the evidence points only to him being the driver of the vehicle which was used to transport those who committed the offences inside the home.
[82] It is fair to conclude that the exact number of intruders who entered Paul Miller’s home cannot be determined beyond a reasonable doubt. The most reliable evidence on this issue came from Erica Meyer, but even her statement at the relevant time estimated that it was either four or five people who ran to the Acura vehicle from Mr. Miller’s home. All of the intruders were masked and there is no witness who can identify any of the intruders. Their identity turns on circumstantial evidence. In this regard there is considerable evidence to suggest that Mr. Weir was one of the individuals who entered the home. When apprehended he was wearing black garments from head to toe as described by Mr. Miller and Ms. Flack. He was also found at the time of his arrest carrying a mask. He also disposed of black gloves prior to his arrest. I also find it significant that before the intruders rushed back to the car, the driver’s side door was open. If Mr. Weir was only the getaway driver it strikes me that the driver’s door should have been closed with Mr. Weir simply waiting for the others to return to the vehicle. Nevertheless I acknowledge that without any specific identification of who was in the house I cannot conclude beyond a reasonable doubt that Mr. Weir was one of the intruders in the house. This case is similar to the case of R. v. Morgan, 2013 ONSC 1522, which was also a home invasion. At para. 71 of the decision Justice Skarica comments as follows,
On the evidence before me, it is obvious, beyond any reasonable doubt, that the main Demaine Smith and Calvin Morgan were participants in the home invasion robbery. However, it is impossible to determine what role each of them played in the aggravated assault of Jordan Northcott. Further, it is impossible to say which robber had the gun.
[83] Similarly in this case it is impossible to know what role each of the intruders had in the home invasion.
[84] However, my analysis of the case does not stop there.
[85] At para. 77 of the Morgan decision the Court states,
It is a reasonable inference that all the robbers, including Mr. Morgan, were aware of each other’s weapons and their intention to use them in a violent fashion to overcome any and all resistance from the victims. When Jordan Northcott resisted, he was attacked by three masked men. He was stabbed and threatened thereafter with an imitation handgun. It is a reasonable inference that the violence and use of weapons were all part of the plan and common intention to confine and rob the three victims in the home at 30 Tullamore. The serious injuries to Jordan Northcott were objectively foreseeable by all the robbers including Mr. Morgan. The fact that Mr. Northcott was tied up and left to bleed profusely, while the robbers continued to ransack and steal items, confirms that violence and injury to the victims were all foreseen (or ought to have been foreseen) to be part of the plan and common intention to confine and rob the three victims.
[86] Similarly in this case, I have concluded that this was a highly organized and planned home invasion. It involved not only a stolen vehicle to use as transportation. It also involved the use of stolen license plates on that vehicle. All of the invaders wore gloves and masks to ensure that their identity would not be compromised. It would not have been possible to predict the number of people who would be in the home when the plan for the home invasion was made. The number of people involved in the home invasion ensured that they would be in a position to overcome any resistance inside the home. Violence was clearly contemplated as part of the home invasion as reflected by the fact that Mr. Miller was punched in the face promptly on the initiation of the home invasion. The home invaders would not necessarily have been able to know what weapons might be available to the residents of the home resulting in the need for firearms to ensure they were able to overcome any resistance offered. They also needed firearms to ensure compliance with the orders that were given to the occupants of the home and as a means of getting the occupants to volunteer where in the home the alleged money was located. None of the home invaders took exception to the use of guns, which suggests that the use of firearms in the home invasion was contemplated. In fact the person who initially knocked on the door had a firearm in his hand which suggests that his possession of the weapon was part of the plan and would be known to the others. Similarly, the person who confined Ms. Flack upstairs had a firearm which would have been obvious to the to the two others who were upstairs. The inference I draw is that Mr. Weir would have been well aware of the planned home invasion and the expected use of force and firearms and consented to their use. It is totally unreasonable to think that such a carefully planned operation would proceed without the getaway driver being part of the planning for this home invasion. Each person involved would be well aware of their role as part of the overall planning for the home invasion.
[87] The inference I draw, therefore, is that Mr. Weir had agreed to participate in a home invasion which had a common unlawful purpose. A number of different offences were contemplated for purposes of carrying out the home invasion. It was clearly anticipated that the use of force would be required together with threats being made to the inhabitants of the home as well as the use of firearms. Each of the home invaders knew or ought to have known that violence, the use of force and threats to people within the home would be a probable consequence of carrying out the common purpose of the home invasion.
[88] I therefore conclude that Mr. Weir is guilty under Count 1 of committing an assault on Paul Miller as he either had a common intention to carry out the home invasion or aided in the parties committing it and was aware that violence would be a probable result from carrying out the common purpose.
[89] Under Count 2 Mr. Weir is accused of using a restricted or prohibited firearm, contrary to s. 344(1)(a) to rob Mr. Miller. This section provides that every person who commits robbery is guilty of an indictable offence and liable if a restricted or prohibited firearm is used in the commission of the offence. Section 343 defines robbery which can be committed in several ways. While generally theft is an essential ingredient of robbery under s. 343, it is not an essential ingredient of robbery under s. 343(c) which provides that everyone commits robbery who assaults any person with intent to steal from him. In the present case, the inference I draw is that the home invaders assaulted Mr. Miller with the intention to steal from him as reflected in the robbers’ demand that they wanted to know where the money was. Under s. 344(1)(a) it provides that if a restricted firearm or prohibited firearm is used in the commission of the offence, the offence has been committed.
[90] In this case, the firearm alleged was a Glock 27 which was found in the wooded area west of 730 Cedar Street the day after the home invasion. Both Mr. Miller and Peggy Flack gave evidence that guns were used against them during the home invasion. The Glock 27 was found in the wooded area abandoned on the following day. It matches the description given by Ms. Flack of the firearm which was used against her. No persons other than the individuals suspected to be part of the home invasion were found in the wooded area on the night of the invasion. There is no sign such as rust or other indicia that the Glock 27 firearm had been there for an extended period of time. The firearm was located in the general area where the suspects were noted to be travelling on the night before. The inference I draw is that the Glock 27 firearm is in fact a firearm that was used in the home invasion. According to the Agreed Statement of Facts, the Glock 27 firearm is defined by the Criminal Code as a prohibited firearm. The inference that I draw is that the Glock firearm is in fact a firearm that was used during the home invasion and was used as part of an attempt to rob either Mr. Miller or Ms. Flack who were assaulted during the home invasion.
[91] As noted earlier it is not clear from the evidence that the gun found in the bush area was used against Mr. Miller as opposed to Ms. Flack. As a result, I am only satisfied that Mr. Weir did commit the lesser and included offence of robbery pursuant to s. 343(c) of the Criminal Code, either as a co-principal or aider.
[92] With respect to Count 3, this relates to the discovery of an imitation firearm. I have concluded that there is an issue as to whether this imitation firearm was involved in the home invasion. It was found partially in a clear plastic bag with water in it. There is no evidence that it rained overnight. It also had signs of rust on it suggesting it could have been exposed to the elements for some period of time. In the circumstances I am not able to conclude beyond a reasonable doubt that this imitation firearm was used in the home invasion and therefore Mr. Weir is acquitted on Count 3.
[93] With respect to Count 4, Mr. Weir is charged with using a restricted or prohibited firearm while committing the indictable offence of robbery against Joshua Miller. As there was no evidence that Joshua Miller was robbed, this count is dismissed.
[94] With respect to Count 5, this again makes reference to the use of an imitation firearm. For the reasons previously given, I have not been able to conclude beyond a reasonable doubt that an imitation firearm was used during the home invasion. Mr. Weir is therefore acquitted on this Count.
[95] With respect to Count 6 and the allegation that Mr. Weir knowingly uttered a threat to cause death to Peggy Flack, I accept the evidence of Ms. Flack that such a threat was made to her by one of the invaders. I therefore conclude that it constitutes the type of violence contemplated in the home invasion and I therefore find that the Crown has proved this charge beyond a reasonable doubt either as a co-principal or as an aider.
[96] With respect to Count 7 that Mr. Weir did commit break and enter a dwelling house with intent to commit an indictable offence for the reasons noted above, I conclude that this offence has been proved by the Crown beyond a reasonable doubt either as a co-principal or as an aider.
[97] Count 8 again makes reference to an imitation firearm. For the reasons previously given I conclude that this count has not been proved beyond a reasonable doubt and Mr. Weir is therefore acquitted on this count.
[98] With respect to Count 9 that all of the home invaders had their faces masked or otherwise disguised, I have concluded that this count has also been established by the Crown beyond a reasonable doubt as all of the home invaders were masked and Mr. Weir was either a co-participant or aided in the home invasion. The Crown has proved this charge beyond a reasonable doubt.
[99] With respect Count 10, Mr. Weir is charged with possessing a prohibited or restricted firearm while knowingly not being a holder of a license permitting such possession. As part of the Agreed Statement of Facts, the Glock 27 seized in the wooded area is a prohibited firearm. There is no evidence that either Mr. Weir or Mr. Stephens held a license permitting this possession and in fact it is an agreed statement of fact that Mr. Weir was bound by two s. 109 orders that prohibited him from possessing any weapons including restricted or prohibited firearms.
[100] Under s. 4(3)(b) of the Criminal Code where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. In this case I infer based on the circumstances that Mr. Weir was well aware of the use of firearms in the home invasion. This is an inference drawn from the fact that at least two firearms were used in the home invasion and must have been referenced during the planning for the reasons described above. I further find that each of the home invaders were plainly all in joint possession of the firearms and the parties who actually held the firearms did so with the knowledge and consent of the rest of the home invaders and therefore the weapons are deemed to be in the custody and possession of each and all of them. I infer that the use of firearms was part of the planning process for the home invasion which Mr. Weir must have been a part of. For the reasons given previously, I am satisfied that the Glock 27 firearm was in fact a firearm that was used in the home invasion. It was agreed by the parties that it is a prohibited weapon under the Criminal Code. I therefore conclude that the Crown has proved this offence beyond a reasonable doubt.
[101] Count 11 alleges that Mr. Weir possessed a loaded prohibited or restricted firearm without being a holder of an authorization or license. For the reasons given earlier I find the Crown has proved this charge beyond a reasonable doubt.
[102] With respect to Count 12 it is alleged that Mr. Weir operated a motor vehicle while being pursued by a peace officer and failed to stop the motor vehicle as soon as was reasonable. The evidence is overwhelming that Mr. Weir was the driver of the get-away car and Mr. Weir has conceded this fact in his final submissions. The helicopter video clearly shows that Mr. Weir failed to stop his vehicle at a police road block. The Crown has proved this charge beyond a reasonable doubt.
[103] With respect to Counts 13 and 14 Mr. Weir is charged with possession of a firearm while prohibited from doing so. For the reasons previously given I find that the Crown has established these offences beyond a reasonable doubt.
[104] I therefore conclude that the Crown has proved beyond a reasonable doubt against Mr. Weir the following Counts 1, 2 (on the lesser and included offence of robbery under s. 343(c) of the Criminal Code), 6, 7, 9, 10, 11, 12, 13 and 14.
The Charges Against Roshane Stephens
[105] Mr. Stephens argues that there is positive evidence that he was not one of the intruders at the Rondeau Court home of Mr. Miller. He references the fact that both Mr. Miller and Ms. Flack were adamant that they were robbed by perpetrators dressed in black from head to toe and not by an individual in a light grey tracksuit. He argues that the distinction between black clothing “from head to toe” and a light grey tracksuit is a significantly distinguishing feature. He therefore argues that there is no evidence linking him as one of the intruders given that he was arrested on the night of July 16 wearing a grey tracksuit.
[106] There are two possibilities. The first is that Mr. Miller and Ms. Flack were incorrect in stating that all the intruders were dressed in black from head to toe. The other alternative is that Mr. Stephens was not part of the home invasion.
[107] I start from the inference that all members of the home invasion team came and departed in the silver Acura. This is based on the evidence that the get-away vehicle was left backed up in Mr. Miller’s driveway and the evidence of Ms. Meyer which I accept.
[108] When the Acura was abandoned on Knights Road the helicopter video shows that five people exited the vehicle. The video does not allow, however any ability to see the colour of the individual’s skin or what they were wearing. However, there is another video taken from the house immediately across the street from where the Acura stopped and where the five occupants got out of the vehicle and ran away. This video is generally of excellent quality but it is in black-and-white. It can be seen on the video that a person dressed in a grey or light coloured tracksuit gets out of the rear driver’s side of the vehicle before he runs away. What this individual was wearing appears identical to what Mr. Stephens was wearing on the night of the home invasion. Specifically Mr. Stephens at the time of his arrest was wearing a grey tracksuit over a dark black shirt and with white and black running shoes. In the video taken by Officer Kowalski, which was taken at the time of his arrest, the black shirt can be seen clearly in a band of black on his back underneath the bottom of the grey sweatshirt top. In the video which was taken of the Acura which had stopped on Knights Road, an individual can be seen getting out of the driver’s side rear door. He is wearing a grey or light coloured tracksuit. Similarly the band of black can be seen underneath the top of the tracksuit on his back. It also appears that the individual is wearing light coloured running shoes. The similarity of the person coming out of the Acura vehicle and Mr. Stephens’ appearance at the time of his arrest are remarkable and I am led to conclude that they are the same person. It is also significant that the person seen getting out of the Acura vehicle with the light coloured track suit appears to be wearing a mask.
[109] I also find it very relevant that the individual in the light coloured tracksuit got out of the rear driver side of the vehicle very promptly after the vehicle stopped. Photographs of the Acura vehicle show that there were only two bucket seats in the front. This means that three individuals would have been in the rear seat. It seems clear that the person in the light grey tracksuit was physically located behind the driver in the Acura vehicle. This in turn means that the person in the grey tracksuit was not located in the middle of the back seat. Given that there was a minimum of four people seen running from the residence, this means that the person with the grey tracksuit was not one of the first people in the Acura after the home invaders decided to leave. This in turn means that the person in the grey tracksuit was one of the four or five people seen leaving from the home and running to the car by Ms. Meyer. He was not an innocent bystander who waited in the car or nearby the car during the course of the home invasion.
[110] At the time of his arrest Mr. Stephens did not come forward in response to police calls and indicate where he was. Instead he lay prone on his stomach and appears to be attempting to conceal himself from the searching police officers. This is highly relevant after-the-fact conduct suggesting that Mr. Stephens was attempting to continue his flight from police and conceal himself from detection.
[111] Also at the time of his arrest, he was found immediately beside another suspect who was apprehended that evening, N.M. who was dressed in black from head to toe.
[112] Mr. Stephens’ DNA was also found on a black glove near where Mr. T., another suspect was arrested. The glove was found by Officer Lusty who gave evidence at trial in a straightforward manner. Much of his evidence was supported by the camera he wore for much of the time he was searching for suspects. Mr. Stephens suggests that his DNA may have been transferred unintentionally from Officer Lusty to the glove. This is based on the fact that Officer Lusty had previously been involved in the arrest of Mr. Stephens and briefly touched his stomach as part of a pat down during the arrest. Officer Lusty subsequently located the glove which Mr. Stephens asserts might have inadvertently transferred his DNA to the glove. I reject this suggestion, however. Mr. Alderson in his evidence noted that Mr. Stephens’ DNA was identified on the inside of the glove. He would not expect the DNA to transfer to inside the garment. In addition, when Officer Lusty was involved with the arrest of Mr. Stephens he was not wearing gloves. However, when he picks up the glove in the bush area later on, his evidence which I accept, was that he wore a tactical glove. It would appear that if there’s going to be any transfer of DNA it would be Officer Lusty’s DNA which is transferred from his tactical glove to the glove which was found and not Mr. Stephens’ DNA.
[113] I infer that Mr. Stephens threw away the gloves he was wearing as a means of trying to distance himself from being part of the home invasion where all of the intruders are described as having worn gloves. Given the weather conditions on the night in question, there was no need to wear gloves.
[114] There is also evidence that one of the other suspects was not wearing black from head to toe. This was a suspect who was wearing a blue-and-white Adidas sweatshirt. This calls into question the reliability of the evidence of Mr. Miller and Ms. Flack that all of the intruders were wearing black from head to toe.
[115] The inference I draw from Mr. Stephens’ glove being found in the wooded area is that it was an attempt by him to dispose of evidence linking him to the home invasion.
[116] In his submissions, Mr. Stephens suggests that there are alternative explanations for why Mr. Stephens was arrested in the Oshawa Creek trail wearing dirty clothing and without a wallet, cell phone or other items capable of identifying him. He states,
Notably the presence of 10 to 20 armed police officers suddenly descending on the area, combined with the sound of intermittent sirens and the steady hum of air – one circling overhead (described by D/Cst. Williams as 6 – 7/10 in terms of volume) would cause most people to panic and try to conceal themselves. Any fear of apprehension unrelated to participation in a home of invasion, both real or imagined, could cause a person to attempt to conceal themselves and their identity.
[117] He further states,
Further to R. v. E(V.), there is no evidence of Mr. Stephens participating in a criminal act other than running from the scene. No witness could identify him at the scene. No inculpatory statement nor stolen property connected him to Rondeau Court. It would be an error to jump from evidence of post offence conduct to an inference of guilt without properly considering alternate explanations.
[118] I have considered all of these factors in my decision. However, it is not simply Mr. Stephens’ presence in the wooded area that causes me to conclude that the Crown has met its burden of establishing the offences that were committed by him. It is also his presence in the getaway car and the DNA on the glove that was found in the wooded area together with that he was arrested laying face down covered in burs and in a dishevelled state that leads me to infer that Mr. Stephens was part of the group who conducted the home invasion on Rondeau Court. Mr. Stephens’ presence in the wooded area has no innocent explanation. On the night in question it was very hot and the bush area where he was arrested had many flying insects. This was confirmed by a number of the police officers who gave evidence and the flying insects can easily be seen on the police videos of the search. These factors go a long way to explaining why no one, other than the suspects from the home invasion were seen in the brush area by police that evening. It was a very inhospitable environment. Mr. Stephens also did not have any wallet, identification or cell phone on him when arrested, which also reinforces my conclusion that he was involved in the home invasion either as a co-principal or as an aider.
[119] For the reasons given in relation to the Defendant Weir, I find that the Crown has established the offences beyond a reasonable doubt against Mr. Stephens outlined in Counts 1, 2 (on the lesser and included offence of robbery under s. 343(c) of the Criminal Code), 3, 6, 7, 8, 9, 10 and 11 of the indictment for the same reasons set out in my decision relating to the Defendant Weir. Mr. Stephens was either a co-principal or an aider with respect to these Counts..
Conclusion
[120] For the above reasons, I find that the Defendant Weir is guilty of the charges on Counts 1, 2 (on the lesser and included offence of robbery under s. 343(c) of the Criminal Code), 6, 7, 9, 10, 11, 12, 13 and 14.
[121] I find that the Defendant Stephens is guilty of the charges on Counts 1, 2 (on the lesser and included offence of robbery under s. 343(c) of the Criminal Code), 6, 7, 9, 10 and 11.
Justice M. McKelvey
Released: May 4, 2026
CITATION: R. v. Stephens, 2026 ONSC 2629
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
ROSHANE STEPEHNS and CHARLES WEIR
Defendants
REASONS FOR JUDGMENT
Justice M. McKelvey
Released: May 4, 2026