R v Dong, 2023 ABKB 141

Court of King’s Bench of Alberta Citation: R v Dong, 2023 ABKB 141 Date: 20230313 Docket: 200202323Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Huai Ze Dong Accused _______________________________________________________ Decision of the Honourable Justice S.N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] Mr. Dong is accused of robbing the Scotiabank branch located at 10835-51 Avenue in Edmonton on February 14, 2020. There are two primary issues here: identity and whether this was a robbery or merely theft.

II. The Robbery [2] On February 14, 2020, at about 7:18 p.m., an individual wearing a surgical mask[1] walked up to the counter at theScotiabank branch located at 10835-51 Avenue in Edmonton and handed a note to a teller. It read: this is a robbery, you are not in danger, call the police 30 seconds after I leave the door, give me all your money, no bugged money.[2] [3] The robber handed the teller a box. The teller placed cash in the box. The robber then left the bank with the box of cash. Theteller locked the door and told her manager what happened. The police were called. III.

The Accused [4] The Crown’s theory is that the Accused robbed the bank. [5] At the relevant time, the Accused was a student at the University of Alberta, living alone in a dormitory room in ChalifouxHall, part of the Lister Hall student residence complex at the University. [6] The Crown alleges that the Accused left Chalifoux Hall and robbed the bank. After leaving the bank, he walked to theSouthgate Light Rail Transit (LRT) platform, boarded the LRT train heading northbound and disembarked at the HealthSciences/Jubilee LRT station.

The Accused then walked to Chalifoux Hall, where he went into a washroom, looked through the money,discovered a GPS tracker, went back outside and then discarded the tracker under a nearby vehicle along with some of the money. Heallegedly left another part of the money in a sitting area in the Chalifoux Hall complex, near the entrance. [7] The Accused was arrested a couple of hours after the robbery. [8] The Crown’s evidence, in support of its theory of the case, includes viva voce testimony, videos taken at Chalifoux Hall andthe LRT stations, GPS tracker records, internet network records, and physical evidence.

IV. Burden and Standard of Proof [9] The Accused is presumed to be innocent, and his guilt must be proven beyond a reasonable doubt. [10] The burden to prove the Accused’s guilt rests on the Crown and remains there until the Crown discharges the burden bymeeting the proof beyond a reasonable doubt standard. The Accused has no burden to disprove the Crown’s case or to prove hisinnocence.

An acquittal must follow if there is a reasonable doubt on all of the evidence. [11] In R v Lifchus, (SCC), [1997] 3 SCR 320, the Supreme Court of Canada discussed reasonable doubt.Lifchus stands for several fundamental principles: (

a) A reasonable doubt is a doubt that is based on reason and common sense, and is logically connected to the evidence or theabsence of evidence (para 30); (

b) Reasonable doubt is not a doubt that arises from sympathy or prejudice (para 31); (

c) Proof beyond a reasonable doubt requires a higher level of proof than probable guilt; however, it does not require proof to anabsolute certainty (para 31); (

d) Proof beyond any doubt is not required. Instead, the standard requires proof beyond a doubt that is not imaginary orfrivolous (para 36); see also R v Starr, 2000 SCC 40 at para 93). (

e) It is not enough that an Accused is probably guilty. The Accused’s guilt must be proved beyond a reasonable doubt (at para36). [12] I will now turn to the evidence in this case. V. Evidence A. Preliminary Points [13] The Crown and the Accused admitted a number of facts as set out in the Agreed Statements of Facts. Those admitted facts areaddressed, as required, in my discussion below. [14] The Crown and the Defence admit jurisdiction and locations and that the dates and the times in the video evidence areaccurate. The continuity, integrity, and containment of the Accused’s rented dorm room is admitted.

There are no issues with respect tothe preservation, continuity and integrity of other exhibited evidence. [15] Also, an Agreed Statement of Facts states that there were four $20 bills within which the GPS tracking device was hidden,and they had the following serial numbers: FSS8296600, FWU6721117, FSN5955265 and FSK1001378. The Agreed Statement of Fact

also describes the witness Mr. Kowalski finding a stack of $20 bills under his vehicle. The top bill in the stack had the serial number FSK1001378, matching the serial number of one of the recorded bills. The tracking device was with the bills. [ 16 ] The Accused did not lead any evidence, as is his right. B. Witnesses 1. Jennifer Ronneberg [ 17 ] Jennifer Ronneberg was the teller who interacted with the robber.

She testified that on February 14, 2020, at about “7:30-ish” an individual wearing a hoodie and with their face covered in a blue medical mask entered the bank and came to the counter where she was working. Ms. Ronneberg greeted the individual, who gave her a box with the note referred to earlier in this Decision. The person said nothing. [ 18 ] Ms. Ronneberg put approximately $5,190 in cash in various denominations in the box; the robber took it and walked out of the bank.

She locked the door and told her Manager to call 911. [ 19 ] She described the robber as smaller in stature than herself and dressed entirely in black. She identified the person as Asian in her statement to the police. [ 20 ] Ms. Ronneberg also told the police that the robber might be a female based on their small stature. She told police that the robber was wearing a hood and had black hair that was tied back with a pink hair tie, which she said contributed to her identification of the person as female. [ 21 ] During cross-examination, Ms.

Ronneberg confirmed her statement to the police that the robber did not wear glasses. She thought that she remembered the person wearing a hood and carrying a backpack; but based on the video, she confirmed that was not the case. 2. Kirby Harmon and the GPS Tracking Device [ 22 ] Ms. Ronneberg placed a GPS tracker device in the money provided to the robber hidden between four $20.00 bills with recorded serial numbers as noted above.

The GPS device uses GPS and cellphone technology to self-locate and then report data to a third party, 3SI Canada. [ 23 ] Kirby Harmon, an employee of 3SI Canada (which monitored the tracking device placed with the money) swore an affidavit, including attachments; the affidavit was admitted into evidence under s 30 of the Canada Evidence Act , RSC 1985, c C-5 . In the affidavit, Mr. Harmon describes his knowledge and expertise with respect to tracking devices. [ 24 ] The tracking records show the date, time, nearest street address, latitude and longitude, direction of movement and speed of movement of the device.

The location information is accurate, according to Mr. Harmon, within 18 to 29 metres. [ 25 ] I am satisfied that the records accurately show movement data of the GPS tracking device deployed with the money given to the robber. [ 26 ] In reviewing the records, at 7:19 p.m. the movement begins, at speeds of about 2.2 to 4.5 miles per hour, with no movement at certain intervals. The reporting intervals are, on average, about 5-7 seconds apart. It arrives at the Southgate LRT station. [ 27 ] At 7:30 p.m., higher speeds are recorded. The device leaves the Southgate LRT station.

The speed starts at 13.4 miles per hour and then goes as high as 40.3 miles per hour. The device stops moving for about 30 seconds at the South Campus LRT station. Higher speeds are then recorded as the train goes north on 114 street to the McKernan/Belgravia LRT station, where it stops at 7:35 p.m. and begins moving again at 7:37 p.m. The speeds are consistent with the movement of the device on the train. [ 28 ] Then, the device arrives at Health Sciences/Jubilee Station where it is briefly stationary, then moves at a speed of 2.2 miles per hour towards Chalifoux Hall.

In Chalifoux Hall, there is a lengthy period of time when the device is stationary, from 7:43 p.m. until 8:19 to 8:21 p.m. when there is some movement at the 2.2 mile per hour speed. [ 29 ] At 8:34 p.m. the device goes to longer reporting intervals about 5-6 minutes apart. According to Harmon’s affidavit, this is automatic and is designed to save battery power.

There is some odd sporadic movement recorded between 9:05 and 9:30 p.m. and then again between 11:35 p.m. and 12:05 a.m. the next morning. [ 30 ] A map exhibited in the trial illustrates the movement of the device from the bank, the beginning of the tracking on the way to the LRT station at Southgate, travel on the train route, ending at Chalifoux Hall. [ 31 ] I accept as true the evidence that the GPS device placed by Ms.

Ronneberg in the box with the money moved at speeds consistent with travel on foot and by LRT, with stoppages consistent with the stations en-route from Southgate to Health Sciences/Jubilee LRT stations and then to Chalifoux Hall. [ 32 ] The device report times are nearly identical to the LRT video times which I will discuss shortly. [ 33 ] I accept Mr. Harmon’s explanation of why there are the slight movements mixed in with the times when the device is stationary for prolonged periods: this is consistent with the way that data is transmitted to satellites.

There is movement shown within times that the device is otherwise stationary, but it is important to note that the address of the device does not change.

[ 34 ] A member of the public found the GPS device just outside the front doors of Chalifoux Hall, under a vehicle. 3. Paul Jean [ 35 ] Mr. Jean is 61 years old. He works as a janitor at the University in various buildings. At the time of this incident, he was working at the Lister Hall residence complex. [ 36 ] He came to work on February 15, 2020 at about 1050 a.m. He saw a piece of paper under one of the benches in a seating area under a chair in the front lobby area, around the corner from the front entrance in a curved-off area.

The area is open access and is out of the sightlines of the CCTV camera in Chalifoux Hall, which I will discuss shortly. [ 37 ] According to the Agreed Statement of Facts, the piece of paper was a brown paraffin bag with money in it: fourteen $100 bills, twenty-two $50 bills, one hundred and twenty-two $20 bills, and six $10.00 bills. [ 38 ] Mr. Jean put the money in an office and continued working. When he was getting ready to go home, he saw people looking for something, and on inquiry turned over the money. 4. Sebastien Kowalski [ 39 ] Sebastian Kowalski is a University of Alberta student.

He testified that in February 2020 he lived in Henday Hall in the Lister Hall complex, another of the five residence buildings, all of which are connected internally. [ 40 ] Mr. Kowalski confirmed that the Health Sciences/Jubilee LRT station is about 5 minutes walk from the Lister Hall complex. [ 41 ] On February 15, 2020 at about 11-1130 a.m., he was helping a friend move out of residence. His car was parked in a lot outside the external doors to Chalifoux Hall, fairly close to the entrance.

It had been there since about 3 p.m. the day before. [ 42 ] He found a stack of 20-dollar bills about a centimetre thick under the rear of his car, in the snow. Mr. Kowalski saw a police vehicle nearby and gave a police officer the money. 5. Mohamed Darwish [ 43 ] Mohammed Darwish was an engineering student at the University in February 2020. He lived in Chalifoux Hall and was a resident assistant: an upper year student who orients 1 st year students and helps them adjust to university life. In this role, he had some measure of responsibility for 30-40 students. Mr.

Darwish had a list of all the students on his floor and their room numbers. He knew the Accused as “Colin Dong” but admitted to limited interactions with him. Mr. Darwish knew what the Accused looked like, and he testified there was no one else on the floor who looked like him. [ 44 ] Mr. Darwish said that the Accused wore glasses. He could not remember the last time he saw him, how old he is, or how tall, but estimated a height of about 5’5”. [ 45 ] The police had shown Mr. Darwish a video capture photograph of the Accused.

In that photograph, the Accused has long hair, wears glasses, and is dressed in black clothing. He appears to have backpack straps on his left side behind his back. He has black runners with white soles and a white tip. [ 46 ] Mr. Darwish identified the Accused as the person in the video capture, and said he was “positive”. Mr. Darwish also identified the Accused in the courtroom as the same person he knew at Chalifoux Hall as Colin Dong. He further confirmed that there was no one else on the dorm floor that looked like Colin. 6.

Michael Spaling and the Wi-Fi Records [ 47 ] Michael Spaling is a computer security expert at the University of Alberta. He testified that on the evening of February 14, 2020 he received a call requesting wireless location data for the “CCID” ID: “huaize”. It is an admitted fact that the Accused’s registered name on the University’s wireless network was “huaize”. Mr. Spaling testified that “huaize” is a unique identifier. No other person would have that name. [ 48 ] That name was found in the University’s wireless service records.

The system stores all the logs, identifies the network access point, and the time of connection and disconnection for each ID. [ 49 ] Mr. Spaling gave evidence about an email he sent to University of Alberta protective services in response to their request for wireless location data for the “huaize” CCID. The Crown sought to admit the email as a business record under the common law, not under s 30(4) of the Canada Evidence Act . The email was admitted for that purpose and Mr.

Spaling testified as to its contents, noting that the records show the general movement pattern of a device that is logged onto the University and City of Edmonton wireless networks as the device moves between access points under the username “huaize”. [ 50 ] The records show that the “huaize” ID connected to the University’s Wi-Fi infrastructure at Chalifoux Hall at 5:43 pm on February 14, 2020 and remained connected until about 6:40 p.m. [ 51 ] At 6:48 p.m., that ID connects to an LRT station access point.

The City’s wireless infrastructure appears in the University logs as a specific name and shows when a device is connected to the network at an LRT station. There is a unique code for the City LRT stations, but the information does not show which station the connection is being made at. [ 52 ] That session ends at 7:15 p.m.

[ 53 ] At 7:27 p.m., the user is back on the network at an LRT station. That session ends at about 8:06 p.m., and the User “huaize” is seen on the University network again at 8:10 p.m. at Chalifoux Hall.

At about 8:32 p.m. the ID connects to another part of the network, and then there is a reconnection to Chalifoux Hall. [ 54 ] Lining this up with the videos, these network access times coincide with the Accused’s departure from Chalifoux Hall (6:39 p.m.), the time needed to leave the Southgate LRT station and go to the bank (the robbery is 7:17 to 7:19 p.m.) and then return to the Southgate LRT station, where he is seen walking onto the platform at 7:29 p.m. C. Video Evidence 1. The Bank [ 55 ] Two videos were recorded in the Bank. Their veracity was confirmed by Ms.

Ronneberg in court. [ 56 ] One video shows the counter from behind Ms. Ronneberg with a view towards the entrance and customer waiting area. [ 57 ] The video shows the robber entering the bank carrying a small black box, approaching the counter, handing the note and the box to Ms. Ronneberg, who then puts the money in the box and hands it back to the robber. The robber leaves. The video then shows Ms. Ronneberg talking to her manager (who was behind her) and going to the front door to lock it. [ 58 ] The robber is wearing black clothing (ski jacket, pants) with a black scarf and a light blue surgical mask.

There is a black hoodie under the ski jacket; the hood is visible on the robber’s back. The robber’s hair is long with a part on the side and is tied back with a pink hair tie. No one is masked in the bank except the robber. The robber’s running shoes are black with white soles and what appear to be white laces with white tips. The eyelets are light coloured. The tip of the shoes where the toes are is white. [ 59 ] The time stamp from the videos shows the robber entering the bank at 7:17:33 p.m. and exiting the bank at 7:18:55 p.m. on February 14, 2020. 2. The LRT [ 60 ] Ms. Ronneberg testified (as did Mr.

Kowalski) that the Southgate LRT station is about a 4-5 minute walk from the bank. [ 61 ] There is video evidence of the LRT platforms. There is no video on the trains themselves. [ 62 ] The Southgate LRT video shows a person dressed similarly to the robber ascending the escalator to the platform just before 7:26 p.m. He is then on the platform, entering into the view of the camera at 7:29 p.m. [ 63 ] The person in the video is unmasked, with long dark hair, wearing black clothing that is identical to that worn by the robber in the bank videos: black jacket, black pants, the black and white shoes.

He has a black backpack. The hood from his hoodie rests on the top of the backpack. No scarf is visible. He gets on the train shortly afterwards, just before 7:30 p.m. [ 64 ] The Health Sciences/Jubilee LRT videos show the same person. At 7:38 p.m. a train arrives. The same person gets off the train and walks on the platform. He is unmasked. At 7:39 p.m. the video shows the person walking towards the camera, clearly visible.

He turns around and walks on the other side of the platform towards what appears to be the escalator. [ 65 ] The person has the same clothing and appearance and gait as the person in the Southgate LRT videos. Particularly visible in this video are two white details on the straps of the backpack, in the front. When he turns around and is visible from behind, the backpack details are clear. [ 66 ] At 7:40 p.m., there is a camera view from outside of the station. This person is seen walking northbound towards the station exit.

When he reaches the exit, he turns left, in a westerly direction -- the direction of the location of the Lister Hall complex and Chalifoux Hall. [ 67 ] I pause to note that both LRT platforms are largely empty, with very few people visible except for the individual.

No one else there resembles the robber. [ 68 ] I am satisfied on this evidence that the person who robbed the bank is the same person, dressed in black, in the LRT videos, absent the pink hair tie and surgical mask, now wearing glasses, with the scarf not visible and porting a backpack. [ 69 ] Now that the person is unmasked, he looks strikingly similar to the Accused. 3. Chalifoux Hall [ 70 ] Fourteen CCTV videos taken from separate locations within the Lister Hall residential complex. They show the Accused’s movement throughout the complex on the evening of the Robbery, both before and after it occurred.

I will refer to these as the Chalifoux Hall videos. [ 71 ] I will discuss the videos in chronological terms using the location identification of the cameras for each. All times are based on the video time stamps. [ 72 ] The Accused is seen getting on the elevator on the 5th floor of Chalifoux Hall at 6:38 p.m. I draw this location conclusion from the description of the video as “L5-501ZZ Elevator Lobby”. A video of the main entrance/exit to Chalifoux Hall shows him walking through the main floor lobby at 6:39 p.m. and leaving the building.

[ 73 ] He is wearing a multi-compartment backpack with white details. There appears to be a hood from a hoodie going down his back above the backpack. He is wearing the same clothes, including the running shoes, as the robber in the bank videos. [ 74 ] There is no video evidence from the residence complex for just over an hour. The robbery took place during that time period. [ 75 ] At 7:44:28, the Accused enters Chalifoux Hall through the south entrance, according to the video nomenclature.

His hair is down, he has the backpack and the black two-tone jacket on and is otherwise wearing the same clothes as when he left Chalifoux Hall a little over an hour before, and the same clothes as the robber. [ 76 ] To the left of the entrance (right if one is coming into the building) there is a washroom. The Accused enters the washroom at 7:44:32 and remains there for about 30 seconds. [ 77 ] After leaving the washroom, the Accused starts to walk towards the building’s interior, but he pauses very briefly and then goes back outside after hesitating again where he remains for about 30 seconds.

He re-enters the building at 7:45:51 and proceeds out of this camera’s view. [ 78 ] At 7:46:37, the Accused exits the elevator on the 5th floor of Chalifoux Hall. He has the backpack on and leaves the view of the camera down a corridor. He is also wearing a heavier coat that is consistent with the look of the two-tone coat. [ 79 ] He reappears at 7:49:07 wearing a lighter coloured top, a grey hoodie, and no longer carrying the backpack. His hand is in his pocket as he calls the elevator, waits briefly, and then gets on.

The elevator door closes at 7:49:20. [ 80 ] The next video sequence shows the Accused in the north Lister living room lounge passing through. At 7:49:43 he walks in the “north corridor” towards the camera, looking at what appears to be his phone. He is wearing glasses, black pants, the same shoes, no scarf and no longer wearing the backpack. He is wearing the grey hoodie.

The black pants clearly contrast with the hoodie. [ 81 ] The next period of time (starting at 7:50:10) sees the Accused walking in the “north lobby” through an entrance that says, “to Mackenzie Hall”, then at 7:50:24 in one of the tunnels in the complex. [ 82 ] At 7:51:24 the Accused is videoed walking in the “Ship hallway”, hands in pockets. He is then in the “Main Hall” at 7:51:38, hands in pockets and walks in “main hall south” at 7:51:48 and past the front reception desk (his hands are in his pockets). [ 83 ] The Accused is seen entering the main entrance area from another part of the complex at 7:52.

He is walking into an open area, looks behind him and turns left. He is off camera for about 15 seconds. When back on camera, his hands are in his pockets at first then he takes them out, appears to look at the camera and proceeds out of view. [ 84 ] At 7:52:20 the Accused walks into “Schaffer Hall” or “South East Hallway” from the right. As he nears the camera, he looks around, then turns back in the direction he came from, exiting at the end through a different door. His hands are in his pockets, but he takes one hand out at one point to fix his hair.

He leaves at 7:53:08, and then walks back into the “main entrance area”, pauses before reaching the doors that he originally came through, and turns right in the same direction that he turned left into when he first entered the main entrance area. His hands are in his pockets. [ 85 ] Detective Green described the layout and identified the area that the Accused turned into as a 25’ x 15’ student lounge with only one way in and one way out. He is there for about 14 seconds. This is where some of the money was found by Mr. Jean, the custodian.

The Accused then leaves the front entrance area. [ 86 ] At 7:53:32 the Accused re-emerges into the Main Hall. His hands are freely moving by his sides for most of this brief journey. At 7:53:41 the Accused walks back in front of the front reception desk, with one hand in his pocket. He is seen at 7:53:39 walking back through the main hall south area with his hand in his pocket again and then he takes his right hand out of his pocket but leaves his left hand in his pocket.

As he leaves this area, both hands are visible by his side. [ 87 ] At 7:53:54 the Accused re-enters the Ship Hallway and turns left into a washroom. Both hands are visible. He emerges from the washroom at 7:54:17 and proceeds through the hallway with his left hand in his pocket then both hands visible. [ 88 ] At 7:55:38 the Accused re-enters the tunnel he was in at 7:50, now walking in the opposite direction. Both hands are visible. At 7:55:50 he returns under the “To Mackenzie Hall” sign from the direction that he travelled previously.

His hands are not in his pockets. [ 89 ] At 7:56:02 the Accused returns into the north corridor where he had been about 7 minutes earlier and turns right down what appears to be another corridor. He is in that corridor for about 45 seconds and then emerges and continues away from the camera. His hands are by his side as he walks. [ 90 ] At 7:57 he walks through the north living room lounge area.

His hands are visible. [ 91 ] Hands visible again, the Accused gets off the elevator on the 5th floor of Chalifoux Hall at 7:57:38. [ 92 ] I find that the Accused came in through the south entrance of Chalifoux Hall, went to the washroom, went back outside and hid some of the money under the car, along with the GPS device. Then he went to his room, took off his coat and put the backpack away. He then walked around, ending up in a student lounge and is off camera for about 15 seconds. It is in this area that Mr. Jean found the money.

I conclude that during those 15 seconds the Accused put money under the chair, where Mr. Jean later found it. Before doing this, he has his hands in his pocket. After he puts the money under the chair, his hands are mostly out of his pockets. He returns to his room. The entire sequence of events takes about 13-14 minutes. D. Physical Evidence: items seized from Accused’s Dorm Room

[93] At about 10:05 p.m. on February 14, 2020, the Accused’s dormitory room in Chalifoux Hall was contained and for the next14 hours no one entered or exited the room. [94] After the Accused was arrested, the room was searched, and a number of items were seized: (

a) Black Levi Pants; (

b) Black Puma Sweat Pants; (

c) Black Mountain Warehouse jacket/hoodie (with napkin, lip balm and make-up in the pocket); (

d) Black dress pants; (

e) Black and white converse runners with white toe tips and white laces; and (

f) Black backpack.[3] [95] Detective Kubrak, who searched the room, testified that the clothing is consistent with what the robber is wearing in the LRTstation videos, the bank surveillance video, and the Chalifoux Hall videos. [96] The shoes in the videos are black with white laces and a white area on the toe. This is the same appearance of the shoes thatare in the bank video. [97] The individual in the bank video is wearing black pants. Three pairs of black pants were seized from the Accused’s dormroom.

It is not possible to ascertain which pants are in the video as they are all different; the video quality cannot reveal this level ofcomparative detail and texture. [98] The person in the bank video has a “two tone” jacket, the lower part of it being a different colour from the upper part. Thesetwo parts of the jacket appear to differ from one another in texture as well.

The coat seized from the Accused’s dorm room is two-tone,of two different textures, and the Accused is seen wearing it in the Chalifoux Hall videos. [99] The hoodie also has an insignia or marking on the wearer’s left side that says, “Mountain Warehouse”.

There is an insignia,though difficult to see in detail, in the same spot on the jacket worn by the robber in the Bank video and the LRT videos. [100] The hoodie has small orange zipper pulls, which can be seen – admittedly with some effort – on the coat in the bank video, theLRT videos, and the Chalifoux Hall videos: all of them match the coat found in the Accused’s dorm room. [101] The clothing itself is in evidence. I have examined it. There are photographs of the clothing including a photograph of a mock-up of a mannequin wearing the clothing.

It is strikingly similar in appearance to the clothes worn by the robber, the person on the LRTplatforms, and the Accused based on the Chalifoux Hall videos. [102] In brief, clothing highly similar if not identical to the clothing worn by the robber was found in the Accused’s dorm room andhe is seen wearing the clothing in the video evidence. VI. Analysis A. Has the Crown proved its case? [103] The Crown’s case is based on direct and circumstantial evidence from the videos, the Wi-Fi records, Ms.

Ronneberg’stestimony, the GPS records and the physical evidence. [104] As such, the inference that I draw from the direct evidence is the same as the evidence itself. 1. Direct evidence [105] The bank surveillance video is direct evidence. It is clear and of high quality. The robber in the video looks remarkably like theaccused, despite the mask covering the lower part of his face. 2.

Circumstantial evidence [106] The case also depends to some degree on circumstantial evidence. [107] Neufeld J of this Court discussed the principles of circumstantial evidence in R v Singh, 2021 ABQB 243 at paras 20-21: Circumstantial evidence is evidence that tends to prove a factual matter by proving other events or circumstances from which theoccurrence of the matter can be reasonably inferred: R v Cinous, 2002 SCC 29 at para 89. Each piece of circumstantial evidence maywhen considered in context, contribute to the analysis.

The Crown need not disprove every possible explanation for the behavior or event in question, but in the end the evidence must on thewhole be sufficiently convincing that the standard of proof beyond a reasonable doubt has been met: R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 30–31; R v Villaroman, 2016 SCC 33 at paras 28, 36, 50).

[108] In R v Villaroman, the Court noted, at paras 55-56: Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, couldreasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22.

The court noted that“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simplybecause “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is still fundamentally for the trier [of] fact todecide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [109] Our Court of Appeal in R v Lehner, 2020 ABCA 248 , gave a useful synopsis of the Villaroman principles on this point (atparas 28 and 29): … Villaroman is an excellent reminder to a trier of fact about too readily drawing inferences of guilt by overlooking reasonablealternative inferences. The trier of fact is mandated to consider other plausible theories and other reasonable possibilities that areinconsistent with guilt.

The Crown may need to negative those reasonable possibilities, but certainly does not need to negative everypossible conjecture which might be consistent with the innocence of the accused. Although the line between plausible theory and speculation is not always easy to draw, the basic question is whether the circumstantialevidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the guilt of theaccused. ...

It was noted in Villaroman that “‘[c]ircumstantial evidence does not have to totally exclude other conceivable inferences’;that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and thatalternative inferences must be reasonable, not just possible”: at para 42, citing R v Dipnarine at paras 22 and 24-25. [110] In terms of an identity issue, Henderson J noted in R v Admasu, 2021 ABQB 386 (at para 15): [15] Where the criteria in Villaroman are properly applied, circumstantial evidence can be used to prove one or more of theelements of an offence, including that the accused person before the court was the person who committed the offence: R v HassanAli, 2021 ABCA 21; R v Eide, 2021 ABCA 70; R v Habte, 2020 ABCA 476, R v Matchee 2019 ABCA 5; R v Brazeau, 2018 ABCA 170. [111] I must look at the evidence as a whole, not in compartments. [112] The Crown points out that the circumstantial evidence here includes the following: (

a) The clothing seen in the bank video is virtually identical to the clothing worn by the Accused in the LRT videos and theChalifoux Hall videos, and is consistent with the clothing seized from the Accused’s dorm room; (

b) GPS records of the tracker placed with the cash taken by the robber are consistent with the Accused’s movements on theLRT; (

c) The Wifi records found based on the “CCID” ID for user “huaize”; (

d) The correlation between when and where the Accused is seen in the videos and these Wifi and GPS records. [113] The case here does not depend on circumstantial evidence alone. In concert with the direct evidence, the circumstantialevidence leads to only one reasonable conclusion: the Accused is the robber. That is the only reasonable inference available on thetotality of the evidence, and it is the totality of the evidence that I must consider. 3.

Exculpatory evidence [114] I have considered the rule in R v W(D), (SCC), [1991] 1 SCR 742 (SCC), which requires a trier of fact toacquit an accused person where exculpatory evidence gives rise to a reasonable doubt, even if that evidence is not firmly believed (seealso R v Ryon, 2019 ABCA 36, at para 29 and 39 and R v Achuil, 2019 ABCA 299 at para 26 and 32). [115] The rule applies to all exculpatory evidence, including that which is embedded in other evidence, for example, eyewitnesstestimony.

In R v Panovski, 2021 ONCA 905 the Ontario Court of Appeal stated (at para 81): The decision of this court in R v T.L., 2008 ONCA 763, confirms that this rule applies to the exculpatory features of eyewitnesstestimony. This court recognized in R v T.L. that eyewitness descriptions of a robber that contained significant and discernibly differentfeatures than those of the appellant were exculpatory evidence requiring a W.(D.) direction.

That evidence was exculpatory because, ifaccurate, those features excluded the possibility that the appellant was the robber. [116] The exculpatory evidence here includes the following: (

a) No money was found in the Accused’s dorm room; some was found by Mr. Kowalski behind his vehicle and some by Mr.Jean under a chair. I conclude that this evidence does not raise a reasonable doubt, because the Chalifoux videos are consistent with theAccused putting some of the money outside and some in the seating area. (

b) The surgical mask, pink hair tie and scarf were not found, nor was the box ever recovered. I conclude that this does not proveor disprove anything; it does not raise a reasonable doubt. (

c) The video from the bank does not show any orange on the hoodie and the hoodie seized from the Accused’s room and inevidence has orange zipper pulls. This does not raise a reasonable doubt, because in that video, the robber is wearing a scarf that coversthe area where the orange pulls would otherwise be visible.

(

d) There is a temporal discrepancy when matching Wi-Fi records with the video, as the video evidence suggests that the Accused returned to Chalifoux Hall at 7:51 p.m. but the University wi-fi does not show a connection until 8:06 p.m. In general, the tracking device time records do not match up to the second with the same time records shown in the videos of the LRT platforms and Chalifoux Hall. As Mr. Spaling testified sometimes a user session may continue even if the person has left the area, particularly if they did not log out.

I conclude that these do not match up because there are two different sources of information that underlie the time records. This explanation is reasonable; the purported discrepancy does not raise a reasonable doubt. (

e) There is no backpack visible in the bank videos, but the Accused is wearing a backpack in the LRT videos. There is no explanation for this, nor does the Accused have to advance one, but an equally plausible explanation is that the backpack was left outside the bank during the robbery. (

f) Ms. Ronneberg testified that the robber was wearing a hood. In the bank video, however, the robber is not wearing a hood. While there were some minor discrepancies in Ms. Ronneberg’s evidence, I find that these discrepancies do not contribute to a reasonable doubt, particularly in light of the evidence as a whole, including the video evidence and the clothing evidence seized from the Accused’s dorm room. [ 117 ] On the whole of the evidence, these discordant points are minor in nature and do not raise a reasonable doubt. 4.

Is there reasonable doubt on the whole of the evidence? [ 118 ] The Supreme Court of Canada in Villaroman held that in a circumstantial case, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that the Accused is the person who robbed the bank. [ 119 ] I find that it is the Accused who is seen in the videos at the LRT station and at Chalifoux Hall. He is wearing essentially the same clothing as the robber. He has the same hairstyle as the person identified in the still photograph by Mr. Darwish.

He is seen in the videos wearing clothing and a backpack that are nearly identical to the clothing and backpack seized from his room. The money found in the seating area and under Mr. Kowalski’s vehicle is the money that was taken from the bank, based on the GPS tracker and the serial numbers.

The Accused was travelling on the LRT closely within the time frame that his University network identifier was connecting to City of Edmonton internet infrastructure. [ 120 ] I conclude that the Accused is the robber seen in the bank videos. [ 121 ] To find otherwise would require belief in a confluence of facts that would be preposterous, defying logic and human experience. On all of the evidence, viewed as a whole, this is the logical conclusion.

Some of the evidence is circumstantial, but as noted in Villaroman : [T]he basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. (at para 38) [ 122 ] I find beyond a reasonable doubt, on the totality of the evidence, that the Accused was the person who took the money from the bank as alleged. B. Disguise with intent [ 123 ] The indictment also charged the Accused under s 351(2): disguise with the intent to commit an indictable offence. That

section reads:

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

a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (

b) an offence punishable on

summary conviction. [ 124 ] The Accused was wearing a surgical mask as he entered the bank. Since the onset of Covid-19, many of us have been wearing such surgical masks, at first because it was required by health regulations and since the regulations were relaxed to protect ourselves and others. [ 125 ] In R v Philippe , 2021 ABPC 334 , Fraser PCJ, dealing with a robbery in August 2020, convicted the accused of robbery, but acquitted him on the charge under s 351, noting (at para 39) that although the Accused was masked, “everyone was required to be masked because of Covid-19.

It is impossible to relate being masked for the sole purpose of carrying out the robbery while disguised so as to conceal his identity in these circumstances.” [ 126 ] The question before me is whether the Accused wore the mask into the bank branch as a disguise or in the interests of public health. [ 127 ] I note first that the robbery was on February 14, 2020, close in time to the beginning of the Covid-19 pandemic but before any lockdown or masking requirements. [ 128 ] In the videos, it is clear the Accused was not wearing a mask while awaiting the LRT train.

Further, there is no indication that he wore it while on the LRT, as he is not seen removing it as he leaves the train. He does not wear a mask in Chalifoux Hall.

[129] In my opinion, the only logical conclusion is that he wore the mask into the bank to disguise his face. This is consistent with hishanding the teller a note, rather than speaking to her so she could not identify his voice. [130] Finally, the

section requires that the Accused wore the mask with the intent to commit the index offence – here robbery. Thenote is clear and direct evidence that he intended to rob the bank. I am satisfied beyond a reasonable doubt that the Accused wore themask as a disguise while committing the robbery. C. Was this a robbery? [131] I now turn to the Defence’s ancillary argument: was what the Accused did in fact a robbery within the meaning of s 343(

a) or(

b) of the Code? [132] The Crown identified the operative provisions as s 343(

a) or s 343(b), which state (respectively) that a person commits robberywho “steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence orthreats of violence to a person or property;” or “steals from any person and, at the time he steals or immediately before or immediatelythereafter, wounds, beats, strikes or uses any personal violence to that person” (emphasis added). [133] There is nothing in evidence here that points to an assault or any other actual violence, as described in s 343(b), nor haveallegations of that sort been made. The Defence argues (and I agree) that the only possible

section that could apply is s 343(a), citing R vCallihoo, 2006 ABPC 347, in which Judge Allen conducted a detailed analysis of these sections. [134] As a result, the question is whether, on all of the evidence, the Crown has proved that there were threats of violence?

If thiswere not a robbery, it would be possible to convict the Accused of theft under s 322 as it is an included offence (R v Fergusson, (SCC), [1962] SCR 229) at para 11; see also R v GR, [2005] 2 SCR 371, 2005 SCC 45 at para 25). [135] In R v Ortega, 2014 ONSC 6414, Trotter J noted that to prove robbery the Crown must prove that the theft was accompanied byviolence or a threat of violence and that the threat may be either explicit or implied. Implied threats must be accompanied by a“reasonable apprehension of physical harm” (at para 9).

At para 10, Trotter J described that apprehension as creating a subjective “fearfulstate of mind that is reasonable in all of the circumstances”, citing Lacourciere JA in R v Sayers and McCoy (1983), (ON CA), 8 CCC (3d) 572, at p. 575 (Ont CA): Applying this test to the admitted facts, the words used by the respondents referred to a “robbery in progress”, together with therespondents’ gestures and the manner in which the respondent Sayers spoke or screamed his commands to the tellers, could only have theeffect of causing a reasonable apprehension of physical harm unless the tellers complied with the demand.

The predictable reaction of thetellers was one of fear and concern. (emphasis added) [136] Courts have held that for an implicit threat to fall within s 343(a), the Crown must prove that the victim suffered subjective fear:R v Kulscar, 2009 BCCA 515 (BCCA), R v Provencal (1988), 21 QAC 129 (CA), R v Arsenault (2006), (ON CA),216 OAC 198 (CA), R v MacDonald (1981), (MB CA), 64 CCC (2d) 415 (Man CA), R v McClarty (1984), (NS CA), 62 NSR (2d) 273 (NSSCAD), R v Bourassa (2004), 2004 NSCA 127 , 189 CCC (3d) 438 (NSCA), atpp. 442-444 and R v Griffin (2011), 2011 NSCA 103 , 279 CCC (3d) 464 (NSCA), at p. 474. [137] Finally, the defence put forward R v Bourassa, 2004 NSCA 127.

In that case, the Nova Scotia Court of Appeal held that it isnecessary to examine the entire sequence of events to determine if a reasonable observer would have considered the fear experienced bythe victim to be reasonable in the circumstances. [138] I am persuaded (and indeed bound) by the decision in R v Hodson, 2001 ABCA 111, where it was held (at paras 10-13): The cases given to us on this issue are many and varied. Several are overburdened by their facts. Historically, robbery and theft weredistinguishable from each other when the thief instilled fear in the property owner to facilitate the theft.

Theft, of course, was usuallysurreptitious while robbery was confrontational. In early indictments for robbery fear was the pleaded gravamen of the crime. Oneindictment alleged, for instance, that “. . . A.B. did put H.M. in fear on the highway and took from him 3d – halfpenny”. The law soontilted towards the victim on the proof of the surrounding threat of violence.

See R v Tomlinson [1895] 1 Q.B. 706 where Wills J.observed; “With regard to the doctrine that the threat must be of a nature to operate on a man of reasonably sound or ordinarily firm mind, I onlydesire to say that it ought, in my judgment, to receive a liberal construction in practice; otherwise great injustice may be done, for personswho are thus practised upon are not as a rule of average firmness; . . . ” 710. It was recognized that threats of fear could be subtle as well as vocal.

Smith and Hogan, Criminal Law, 6th ed. (London, Butterworths,1988) at 541 says flatly; “A threat of force may be implied as well as express.” Canadian authority supports the more inclusive approach. “. . . The question is whether the actions and words of the accused, in light of the context and circumstances in which they took place,could reasonably create a feeling of apprehension on the part of the victims.” R v Pelletier (1992) (QC CA), 71C.C.C. (3d) 438 (Que. C.A.) The required review was furthered by the analysis of Doherty P.C.J. expressed in R v Benekritis [1994] B.C.J.

No. 1739, which I quoteand respectfully adopt. “18. As I understand Mr. Cameron’s argument, he submits that the threat of violence as contemplated under

section 343(

a) must beexpressed and anything less than a direct threat does not come within this section. I disagree.

19. In my view, the threat of violence may be implicit and made up of words, writings, or actions, any or all three of which may be considered in the context of the event if they could reasonably create a feeling of apprehension on the part of the victim.” [ 139 ] See also R v Wawia , 2018 ABCA 334 (at para 7 ): ... the appellant clearly committed this crime in a manner that, objectively speaking, would likely cause fear and apprehension on the part of the complainant.

He may not have specifically intended violence, but he had the general intent to conduct himself as he did. [ 140 ] The context must be considered. A masked individual enters a bank branch. There is no bank business at hand; rather, a note is provided that expressly states “this is a robbery” and demands money, which the teller provides. The individual then leaves the bank with the money. The note says that there is no violent intention or danger, but the note itself indicates that this is a robbery.

Although the note says that there was no danger, there was clearly a threat of some indeterminate violence if the demand in the note was not met. Ms. Ronneberg could not have known whether the robber was armed, and it would be a leap of faith on her part to assume that she could believe the note that was passed to her by a masked person dressed in black committing a robbery. [ 141 ] Bank robberies are an historically noteworthy or infamous “crime type”. Ms.

Ronneberg followed her training, and the fact that bank personnel are trained to deal with robberies conveys, to some degree, the notion that robberies are a threat in this type of business operation. [ 142 ] Ms. Ronneberg testified that the robbery made her feel “stress, a little panic . . . [v]ery shaky, adrenalin”. This was the first and only time that she was part of a robbery.

At the very least it is reasonable to surmise that the entirety of the circumstances created an environment of intimidation. [ 143 ] In Hodson , the Court set aside the entry of the included verdict of theft in place of the robbery charge and stated the test thus (at para 15): Was the offence carried out in an atmosphere of apprehension which was exploited by the thief, including, but not confined to, his spoken words? That was the test which was overlooked here. Was her employer’s money given away by Ms. MacLennan under some sense of largesse?

Or was it extracted from her because she was in fear as opposed to being merely importuned? The fact-finding must survey the whole scene before it is made. Only then can the Court truly characterize the actual offence that was committed. [ 144 ] Applying the test here, one must also consider the mischief that would result if a person could promise no violence in these circumstances and not be considered to have committed a robbery on the basis of that promise. [ 145 ] While I appreciate the creativity of the Defence argument, I do not accede to the point.

This was a robbery within the meaning of the applicable Code section. VII. Conclusion [ 146 ] The Accused is guilty of all offences in the indictment. [ 147 ] The matter is remitted to King’s Bench Arraignment Court to set a date for sentencing. Heard on the 15 th and 16 th days of November, 2021 and the 19 th day of January, 2023. Dated at the City of Edmonton, Alberta this 13 th day of March, 2023. S.N. Mandziuk J.C.K.B.A. Appearances: L. Huyser-Wierenga for the Crown K. A. Rodgers

for the Accused [1] I will refer to the person who perpetrated the theft as the robber.