His Majesty the King v. Robert Pichler, 2026 ONSC 3333

R. v. Pichler, 2026 ONSC 3333

CITATION: R. v. Pichler, 2026 ONSC 3333

COURT FILE NO: CR-25-40000369-0000

DATE: 20260605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ROBERT PICHLER

COUNSEL:

Anita Singh, for the Crown

Elysia Nocida for the Respondent

HEARD: April 20, April 21, May 20, and May 21, 2026

RHINELANDER, J.

Overview

1A robbery occurred on October 12, 2024, at the 7-11 convenience store located at 372 Bay Street, Toronto, Ontario. The suspect took a small quantity of money, some cigarettes, and a fountain drink. During the incident, the suspect was in possession of an item believed to be a firearm. The incident was captured on security cameras within the store.

2Mr. Pichler was arrested a block north of the incident in the early morning hours of October 13, 2024, and charged with the robbery. Specifically, he was charged with using a firearm, to wit an airsoft handgun, to rob Syed Asim Raza contrary to section 344(1) of the Criminal Code of Canada.

3There is no dispute a robbery occurred. The sole issue to be determined is whether the Crown has proven beyond a reasonable doubt the person who robbed the 7-11 store on that date was Mr. Pichler.

Legal Framework

4Mr. Pichler is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. There is no obligation for Mr. Pichler to prove his innocence.

5It is not enough for me to believe that Mr. Pichler is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. If after careful consideration of all the evidence, I am not satisfied the Crown has proven beyond a reasonable doubt that Mr. Pichler committed the offence charged, I must find him not guilty.

6As in all cases, the court must assess the credibility and reliability of the evidence of the witnesses. To be relied on, a witness's evidence on an issue must be both credible and reliable. The Court may believe some, none, or all the testimony of any witness, including an accused person.

7The Crown’s case is dependent largely on video footage from the store, the officers’ body worn cameras, items found in Mr. Pichler’s possession, and a still photograph from the booking video obtained after Mr. Pichler’s arrest. I must be satisfied beyond a reasonable doubt that Mr. Pichler’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, at para. 20.

8Inferences consistent with innocence need not arise from proven facts. They may also arise from a lack of evidence: Villaroman, at para. 35; R. v. Gill, 2017 ONSC 3558, at para. 11. Accordingly, a trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. The Crown must negate these reasonable possibilities, but it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence. R. v. Campbell, 2023 ONSC 5284, at para. 42 upheld at 2026 ONCA 58, referencing R. v. Lights, 2020 ONCA 128 at para. 37.

9In R. v. Nikolovski, the Supreme Court of Canada held that triers of fact are in as good, if not better position, to determine whether the individuals captured on video footage committing an offence, are in fact, the accused persons before the court. Videotape evidence, depending on its clarity and quality, can be clear and convincing evidence of identification that a trier of fact can use as the sole basis for identification: 1996 158 (SCC), [1996] 3 S.C.R. 1107, at para 23.

10The degree of clarity and quality of the videotape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight that may be placed upon the evidence. Where it is the only evidence on the issue of identity, these factors are crucial: R. v. Nikolovski at paras. 22-23, 29-30.

11As stated by Boswell, J. in R. v. Campbell, apart from the general quality and clarity of the videorecording, other factors to consider include:

• the length of time the subject is visible on the recording;

• the extent to which the subject can be observed in the recording – is his full face visible or only partially visible?

• the presence or absence of any distinctive features about the subject;

• the circumstances in which the subject can be seen;

• whether the subject’s appearance has changed since the time of the alleged offences; and,

• concerns about cross-racial identification: R. v. Mathias, 2018 ONSC 221, at paras. 88-89.

12In R. v. John, 2010 ONSC 6085, at para. 107, Code, J., held “It is the cumulative effect of all the evidence that matters in a criminal trial. The burden of proof on the Crown applies to the entire body of evidence and not to individual items of evidence. See R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.).”

Analysis

13In this case, the only issue is identity. Is Mr. Pichler the person who robbed the 7-11?

14At the time of the robbery, two staff were on duty, Mr. Kumar and Mr. Raza.

15Mr. Kumar was finishing his shift and being replaced by Mr. Raza for the night shift. Both employees testified the store is open 24-hours with window service only between certain hours. Mr. Raza was controlling the door and flow of customers as he prepared to lock the door, while Mr. Kumar operated the counter.

16Mr. Kumar had finished serving a customer when a male person put a box on the counter and took out a gun. Mr. Kumar was very frightened and moved away from the person. His co-worker, Mr. Raza came behind the counter and dealt with the male. Mr. Kumar did not know how much money was taken but was confident it would not have been more than $20 or $30 as the store kept very little cash in the till at night.

17Mr. Kumar was unable to assist with a description of the suspect due to the passage of time between the incident and providing a statement to police. He does not know Mr. Pichler.

18Mr. Kumar was quite shaken by the incident and took a cab home for his personal safety. He did not return to work the following day and subsequently quit that job.

19Mr. Raza heard a commotion within the store and saw a person pointing a gun at Mr. Kumar who was at the cash register. The person with the gun was a male. Mr. Raza tried to calm him down and offered to give him whatever he wanted.

20Mr. Raza went behind the counter and placed the cash drawer on the counter. There was very little monies because it was closing time, and they did not take cash at the service window. Mr. Raza thought there may have been approximately $10 in $5 denominations. Mr. Raza gave the person two packs of Du Maurier cigarettes, and a cup for a Big Gulp fountain drink. The male put the gun and cigarettes away, filled up his drink cup, and left the store.

21Once everyone left the store, Mr. Raza went to the back room to contact his manager and review the security footage. At some point, Mr. Raza saw the same male at the service window and called 911. Officers attended the scene and viewed the in-store CCTV footage. Two images or screenshots were captured of the suspect and subsequently distributed to officers on duty in 52 Division at the time.

22In addition to the screenshots of the suspect, the following description of the suspect was broadcast: Male White, 6’1, wearing a black hoodie with the hood up, black jeans, black shoes, large black bag, sleeping bag, last seen headed toward Nathan Philip Square.

23Mr. Raza described the individual as a regular customer who frequently ordered hot food, specifically wings, from the service window. Mr. Raza had served him several times earlier that week.

24Mr. Raza was not shown a photo line-up and was unable to recognize Mr. Pichler at the preliminary inquiry as the individual who robbed him. He explained the person responsible for the robbery wore a hoodie and had the hood up. Mr. Raza could not see the person’s hair. He also stated the person in court, Mr. Pichler, had facial hair and the robber did not. He was uncertain and could not confirm Mr. Pichler as the robber.

In-Store Video Footage

25The video evidence from the store included footage from different angles. The footage depicts an individual dressed in black clothing enter the store carrying a duffle/sports bag over his shoulder. A sleeping bag, dark blue with a lighter blue lining or underside, is strapped to the top. The individual put the bag on the floor, removed a red box from an outer pocket of the bag, opened the box on the counter, and removed an item resembling a firearm. The individual pointed the object at the store clerk and waved it around the store.

26The footage showed Mr. Raza leave the door vestibule, approach the individual, go behind the counter, remove the cash till and place it on the counter. Where paper currency would normally be kept, only one spot had bills. These were blue in colour. The male person is seen pulling the blue bill(s) out of the till. Mr. Raza can be seen taking cigarettes from the cigarette cabinet before handing the male another item. On one camera it was unclear what the item was, but in later footage, it is identifiable as a plastic cup for a fountain drink.

27The person is seen putting the object resembling a firearm back in the box and returned the red box to the same outer pocket of the bag. The person filled the cup from the machine, picked up the bag, and left the store.

28The footage corroborated the evidence of Mr. Kumar and Mr. Raza regarding the robbery and the general description of the suspect.

29The clearest video from the store is the “bird’s view” camera. It provides a view of the store from the ceiling looking down. The colours and objects below are distinct. Examples that demonstrate the clarity and quality of this footage is the white writing visible on the top of the red box as the suspect walked to the counter with the box in his hand and items on and behind the counter including a tower of drink cups which matched the plastic cup given to the suspect, and where Mr. Raza grabbed an object before handing it to the suspect.

30Unfortunately, because this camera is above, faces of persons are not readily visible.

31The security footage that covered the drink station and the entrance/exit of the store were not as good quality as the ceiling camera. The distance and angles of those cameras resulted in pixelated images and wide-angled views which did not allow for definitive identification of the suspect.

32Despite the lesser quality of these cameras, I was able to observe the clothing worn by the suspect, the duffle bag, white writing or a label on one pocket of the duffle bag that did not contain the red box, the red box, the pocket from which it was removed and returned, the two-toned sleeping bag strapped to the top of the bag, the shoes worn by the suspect, and the black object removed from the box, which clearly resembled a firearm.

33The video footage obtained from the 7-11 does not provide a basis for definitive identification of Mr. Pichler as the individual who robbed the store. The only high-quality video footage before the Court that permits identification of Mr. Pichler came from the body worn cameras during his arrest.

Police Body Worn Camera Footage

34Officers were dispatched to the area surrounding the 7-11 and were sent two photographs taken from the store security footage and a general description of the person of interest including clothing, the duffle bag, and sleeping bag attached.

35P.C. Kmieciak saw an individual on the north side of Queen Street walking southeast from Nathan Philips Square towards the Queen and Bay intersection. The individual fit the general description received based on the clothing and bag.

36Police approached and subsequently arrested the individual. The person was identified as Robert Pichler. The video quality from the officers’ body worn cameras was extremely clear. Details of Mr. Pichler’s clothing, facial features, sleeping bag, duffle bag, and its contents were readily visible and identifiable.

37The clothing worn by Mr. Pichler closely resembled the clothing worn by the person who committed the robbery. Mr. Pichler wore black cargo style pants with pockets on the side of his legs and tapered at the ankles. The booking video still photo showed a tag or label on the left outside pocket of the pants. The pant style of the person who committed the robbery were black cargo style pants with pockets on the exterior of the leg and a white label or tag on the left outside leg.

38Mr. Pichler wore a black hoodie that covered his head, in the same manner as the person in the 7-11.

39Mr. Pichler carried a black duffle bag with a two-toned blue sleeping bag strapped on top of the bag. The duffle bag had the number “12” on one of the exterior pockets. The suspect had a black duffle bag with a two-toned blue sleeping bag strapped on top of the bag in the same manner. When the suspect entered the 7-11, there was white lettering, numbering, or a label, clearly visible on the outer pocket of the duffle bag. This is consistent with the number “12” on one exterior pocket of the bag in Mr. Pichler’s possession.

40Comparing the video footage from the store with that of the officers’ body worn cameras, including the still photo of the suspect entering the 7-11 circulated to officers, shows a definite resemblance between the clothing worn by Mr. Pichler and the suspect. This conclusion is based on the hoodie worn by Mr. Pichler in the same manner as the suspect, his shoes that turned upward at the toes like that from the in-store video, the physical stature of both individuals, and the side profile of Mr. Pichler when compared to the suspect in the videos. Despite the similarities, this in and of itself does not amount to an identification that establishes proof beyond a reasonable doubt: R. v. Rybak (2008), 2008 ONCA 354, 90 O.R. (3d) 81 (C.A.), at para. 121; R. v. Hadi, 2022 ONSC 2903, at para 37.

41I turn now to consider whether there is any other evidence that links Mr. Pichler to the incident.

Other Evidence

42The defence provided several cases where identity was in issue and courts considered what, if any, inferences could be drawn from other evidence.

43In R. v. Babic, 2022 ONCJ 32, P.T. O’Marra, J. found “there was some compelling evidence” but it was not sufficient to support a conviction, and it pointed only to probable guilt: para. 48. Mr. Babic was the registered owner and operator of the vehicle linked to a home invasion. He was seen operating the vehicle six days later and had a resemblance to the driver from a video recording. There was nothing else to identify Mr. Babic as the perpetrator. While the court found he was probably guilty, this was insufficient.

44In R. v. Hadi, 2022 ONSC 2903, the Crown sought to establish identity by having the Court compare the appearance of an individual alleged to be Mr. Hadi in various videos to his booking video at the time of his arrest, and his appearance during the trial. The passage of time between the various videos and Mr. Hadi’s booking video was approximately two months. The time between Mr. Hadi’s arrest on June 27, 2019, and the trial was thirty months. Schreck, J. concluded “while there are many similarities between Mr. Hadi’s appearance and that of the person in the videos, absent some other evidence, they are not sufficiently distinct to support the conclusion that they are the same person to the degree of certainty required to ground a criminal conviction.” The Court commented that there was nothing unique about the perpetrator’s features and the best he could find was there was a resemblance, which does not amount to an identification. The complete absence of evidence linking Mr. Hadi was also significant: para. 37.

45Similarly in R. v. Shire, 2017 ONSC 4411, the Crown’s case relied heavily on video footage to establish the identity of a shooter. The Court was asked to compare a photograph of Mr. Shire taken a year prior to the incident and his in-court appearance with a video of the shooting. The Court opined there were only six instances in which the person’s face could be seen and each of those instances lasted about a second or less. Charney, J. found there was a resemblance between Mr. Shire and the general descriptors but not enough that permitted a positive identification from the video.

46In many of the cases relied upon by the Defence, there was a lack of evidence linking the accused person to the offence, other than a “resemblance”.

47In R. v. John, 2010 ONSC 6085, Code, J. found there was no evidence linking Mr. John to the clothing worn by the assailant or to the gun used by the assailant. He commented at para. 110:

Presumably the perpetrator disposed of both the clothing and the gun but there is no evidence that the accused John previously possessed similar items. There is also no forensic evidence linking the accused John to the crime. Finally, there is no evidence of past associations, disputes, contacts or incidents that would provide a motive for the crime that points to the accused John. The absence of evidence in these areas must be considered in deciding whether the Crown has met its burden of proof. See: R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 at paras. 57-8 (Ont. C.A.).

48Evidence of a “resemblance” when considered with other evidence of identification may be sufficient for the Crown to prove its case. In R. v. Ryback, 2008 ONCA 354, at para. 121, Watt, J.A. stated, “the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution’s proof.”

49Mr. Pichler had a two-toned sleeping bag attached to the top of a duffle bag. Comparing how it was strapped to the duffle bag, and its colouring matched the sleeping bag seen in the 7-11 videos.

50Upon Mr. Pichler’s arrest, police searched the duffle bag and Mr. Pichler’s person. He had approximately $11 on his person. This consisted of two $5 bills. The money was found in a small pouch inside the front pocket of his hoodie. Mr. Raza’s evidence was the only bills in the till were five-dollar denominations and the person took two five-dollar bills, for a total of ten dollars. I prefer Mr. Raza’s evidence on this point over Mr. Kumar’s because it was Mr. Raza who placed the till on the counter and stood immediately in front of the suspect when the bills were removed. Mr. Kumar was much further in the store as was evident from the video footage.

51The bag Mr. Pichler carried had the number 12 on one exterior end pocket and nothing on the other exterior end pocket. At the 7-11, the duffle bag had white lettering, numbering, or label on only one of the end exterior pockets. The suspect is seen on the in-store camera, removing the red box from the exterior pocket that did not have the white writing. Police located a red box in the exterior end pocket of the duffle bag that did not have the number 12 on it. If this is the same bag seen on the video, the red box was in the same pocket the suspect returned it to.

52The red box had white lettering across the top that read “Tanfogli”. The red box in the store had white lettering across the top consistent with the box found in Mr. Pichler’s bag.

53Inside the box, police found an airsoft gun packaged in a white liner identical to that seen in the store.

54Although police found cigarettes in the duffle bag, the brand was not Du Maurier, but rather Canadian. Part of the branding was visible. From the angle the officer held the package of cigarettes as she removed it from the duffle bag, it did not look new or wrapped in cellophane.

55Between the time of the robbery and Mr. Pichler’s arrest, the passage of time was no more than two hours maximum. In that time, it would have been easy for someone to dispose of the airsoft gun, the duffle bag with the attached sleeping bag, money, and the Du Maurier cigarettes.

56Mr. Pichler was arrested at a location and time proximate to the robbery. Mr. Pichler was dressed in clothing that resembled the clothing worn by the perpetrator. Mr. Pichler carried a duffle bag with a sleeping bag strapped to it that matched the one carried by the perpetrator in the store. Inside Mr. Pichler’s bag was a red box with an airsoft gun. He had two five-dollar bills in the front pocket of his hoodie.

57The likelihood that someone else disposed of the bag and its contents, which were then picked up by Mr. Pichler, who just happened to be wearing clothing that matched the clothing worn by the suspect including shoes that turned up at the toes, pants with cargo pockets, a tag or label on the left pocket of the pants, a black hoodie, the hood pulled up to cover the head, of similar height, and stature, is fanciful and speculative at best.

58When I consider the totality of the evidence, the only reasonable inference is that Mr. Pichler is the individual who attended at the 7-11 store, produced the airsoft gun, removed the five-dollar bills from the till, took cigarettes, a fountain drink and left the store.

Conclusion

59Based on the foregoing analysis, I find Mr. Pichler guilty of robbery using a firearm.