HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 835

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION : R. v. A.M., 2019 ONCJ 835 DATE: 2019 11 18 COURT FILE No.: 3111-998-18-Y953 BETWEEN: HER MAJESTY THE QUEEN — AND — A.M., S.W., K.K., M.R.-M., (young persons) Before Justice A. D. Dellandrea Heard on September 4, 5, 6, 9, 10,11,12,13,16, 17, 19, 20, 23, 24, 25, 26, 27, 30, October 1, 2, 3, 4, 7 th , 2019 Reasons for Judgment released on November 18, 2019

Ms. Jennifer Goulin............................................................................ counsel for the Crown Ms. Jennifer Budgell............................................................. counsel for the accused A.M. Mr. Paul Erskine.................................................................... counsel for the accused S.W. Mr. Michael Owoh.................................................................. counsel for the accused K.K. Ms. Leanna Seetahal...................................................... counsel for the accused M.R.-M. DELLANDREA J.: A.

Introduction [ 1 ] Three armed robberies were committed within just over two weeks in May of 2018. All three were at Scotiabanks within Mississauga. The robberies were committed at gunpoint by perpetrators whose faces were partially masked, with their heads hooded and hands gloved. The robbers entered the banks quickly, took command of the tellers with verbal threats of violence, and demanded that the drawers be emptied of cash.

The money taken was stashed in a bag, then the group quickly fled. [ 2 ] After the first robbery on May 10 th , two hooded men were seen running from the area of the bank and entering a Black BMW nearby. A witness recorded the license plate of the vehicle and provided it to police. The BMW was registered to K.K.’s father. [ 3 ] In mid-May, a project team was assembled by the Central Robbery Unit (“CRU”) of the Peel Regional police to investigate the three robberies. Extensive surveillance began on three targets: K.K., A.M., and S.W.

A fourth robbery was attempted on June 15, 2018, while the target vehicle believed to be carrying some of the targets was under the direct surveillance of the police. A.M. and S.W. had “masked up” inside the vehicle and rushed to the bank’s entrance, only to find that the doors had already been locked. The robbery was foiled, and a takedown ensued. M.R.-M. was also arrested on scene, as the driver of the car that A.M. and S.W. had exited and re- entered following the botched robbery. K.K. was not present on June 15 th .

He was arrested three days later, in connection with the earlier robberies. [ 4 ] A.M., S.W. and K.K. were each charged with multiple offences in relation to the May 10 th , May 15 th and May 25 th robberies, and A.M., S.W. and M.R.-M. were charged in relation to the June 15 th attempted robbery.

In addition, A.M. and K.K. each face a single count of Fail to Comply with Recognizance/Undertaking. [ 5 ] At the outset of the trial, the Crown filed a similar fact evidence application, asking that the evidence in relation to the three May robberies be admissible on each count, for the purpose of establishing the identity of the perpetrators. The evidence in relation to the similar fact application was received on a blended hearing, which was argued at the conclusion of the trial.

Counsel for each of the three implicated defendants (A.M., S.W. and K.K.) opposed the similar fact application, arguing that there was a deficit of unique similarities between the incidents, and weak evidence of linkage between each incident and the individual accused. [ 6 ] In a separate application, also conducted as a blended hearing, M.R.-M. alleged that investigators used excessive force in effecting his arrest, resulting in a breach of his

section 7 rights under the Charter . The remedy requested by the applicant was a stay of proceedings under s. 24(1) of the Charter . [ 7 ] At the conclusion of the evidence, Ms. Goulin conceded that the Crown’s evidence with respect to the May 15 th robbery (counts 4-6) was insufficient to meet the necessary standard of proof beyond a reasonable doubt on those counts. She invited the court to dismiss these charges with respect to all three parties (A.M., S.W., K.K.). They are hereby dismissed. [ 8 ] On behalf of A.M., Ms.

Budgell conceded that the evidence called had established her client’s guilt in respect of the June 15 th charges (counts 11 & 12), as well as the charge of Fail to Comply – Recognizance (count 13). On behalf of S.W., Mr. Erskine made a similar concession with respect to sufficiency of evidence against his client in relation to the June 15 th charges. Convictions will be entered on these charges accordingly. Positions of the Parties [ 9 ] With respect to the remaining two May robberies, identity is the focal and highly contested issue at this trial. On behalf of the Crown, Ms.

Goulin argues that there is sufficient direct and circumstantial evidence available to prove the participation of the three principal parties in both the May 10 th and May 25 th robberies, beyond a reasonable doubt. The Crown relies heavily on the videotape surveillance and stills from each of these incidents, which she argues is of sufficient quality and clarity to allow the court to safely confirm the identity of A.M. and S.W. as the perpetrators, pursuant to the principles of Nikolovski [1] , notwithstanding that the suspects were hooded and partially masked. Beyond her reliance on the videotapes, Ms.

Goulin relies on several items of circumstantial evidence of identification, referred to by her as the “bricks” which she suggests combine to build the proverbial “wall” of identification with respect to all three suspects for these two events. [ 10 ] With respect to the June 15 th incident, Ms. Goulin argued that the evidence of the parties’ movements on that day, both before and during the takedown at the Scotiabank, was sufficient to establish M.R.-M.’s subjective knowledge and participation in the

attempted robbery, as well as the collective knowledge and control by M.R.-M., A.M. and S.W. of the stolen red Pontiac used in its commission. [ 11 ] Counsel for A.M., S.W. and K.K. collectively and individually argue that the Crown’s evidence on the issue of identity of each of their clients for the May robberies is insufficient to meet the exacting but necessary standard of proof beyond a reasonable doubt, in order to support a conviction.

With respect to A.M. and S.W., it is argued that a positive identification of either party could not safely be made based on what little that can be seen of their faces, namely: the top portion of their faces between the middle of the nose to the forehead. Ms. Budgell and Mr.

Erskine further submit that the descriptions of the robbers offered by the witnesses to each incident are too generic to be considered as confirmatory of their client’s identity, and the items of clothing seized from their respective residences are likewise not sufficiently probative to tip the scales of proof beyond a reasonable doubt. [ 12 ] Both A.M. and S.W. take the position that the Crown’s evidence is insufficient to prove their knowledge or control over the stolen vehicle used in the commission of the robbery on June 15, 2018. [ 13 ] On behalf of K.K., Mr.

Owoh submits that the circumstantial evidence of his client’s alleged participation in both the May 10 th and May 25 th robberies is insufficient to prove his client’s guilt beyond a reasonable doubt. While it is acknowledged that the K. family vehicle was associated with the May 10 th incident, Mr. Owoh argues that the evidence is inconclusive as to who was the driver, and that a reasonable doubt should remain on the issue of identity. As for the May 25 th incident, Mr.

Owoh emphasized that the Crown’s theory of K.K.’s liability rests entirely on circumstantial evidence, which does no more than to establish the possibility that someone picked the principals up in a vehicle, potentially a black one, in the residential area behind the bank. There being a complete absence of evidence as to who was driving the vehicle, if any, Mr. Owoh argues that the Crown’s case necessarily fails against his client, K.K., whom the Crown theorizes was the getaway driver. [ 14 ] On behalf of M.R.-M., Ms.

Seetahal argues that the evidence fails to establish that her client had the requisite knowledge of the robbery to be liable for conviction as a party under s. 21(1) or s. 21(2). She suggests that the evidence is equally consistent with her client essentially being a dupe who was taken by surprise when his friends masked up at the door of the bank to which he had delivered them, and raced towards it to attempt to commit a robbery. On the charge of possession of stolen property, Ms. Seetahal makes a similar argument, of an absence of knowledge on her client’s part with respect to the vehicle’s status as stolen.

FUNDAMENTAL LEGAL PRINCIPLES [ 15 ] Each of the parties charged are presumed to be innocent. There is no burden on any party to prove their innocence or to disprove their guilt. As with any criminal trial, the burden of proof remains entirely on the Crown throughout the proceeding, to prove each and every element of the offences charged, beyond a reasonable doubt. Where a reasonable doubt arises on the evidence, or on the lack of evidence, the accused is entitled to an acquittal. THE EVIDENCE

a) May 10, 2018 Scotiabank Robbery • Bank surveillance and witnesses [ 16 ] Less than 10 minutes before the Scotiabank at 660 Eglinton Avenue West, Mississauga was scheduled to close for the day, two men walked into the branch and began an armed robbery. Both wore hoodies over their heads, and masks over the lower portion of their faces. One of the men had a gun. [ 17 ] Three different views from the bank’s video surveillance cameras were introduced into evidence: one from just outside the entrance doors, and two different angles from within the bank, behind the tellers.

While the videos have no sound, they are of excellent visual quality, and collectively capture the participant’s movements for the duration of the robbery. [ 18 ] The tellers had been in the process of doing their final reconciliations at their wickets for the day. The suspect wearing a black Nike hoodie leapt over the counter to the tellers’ side, while the suspect in the green striped hoodie remained on the other side of the counter, pointing a handgun in his left hand in the direction of the staff.

According to the witnesses, both shouted men “give us all the fucking money” loudly. [ 19 ] One of the tellers, Ms. Haroon, testified that the man in black checked all of the wickets one by one, ending with hers, which had the majority of the available cash. The suspect approached her stall and repeatedly demanded “all the money.” He emptied her drawer into a black bag, and demanded to know where there was more. Ms. Haroon explained that her bottom drawer was on a timer which could not be opened in less than five minutes.

The suspect in black continued to rummage through drawers and a rear cabinet until the suspect in green eventually said “we have to go,” and the parties fled. [ 20 ] Ms. Haroon described the suspect in the black clothing as a young black man, perhaps in his 20s, with darker skin than the other suspect. He wore a ski mask over the bottom part of the face. She said he was tall and slim. Both he and his partner spoke in “slang” or street language, and were swearing. [ 21 ] Ms. Haroon described the man in green as light skinned black, of similar age, who was thin and also agile.

She testified that she saw his hair at the side and top of his head, and noticed that it was curly. She couldn’t comment on the length of his hair or whether it was braided, because of his hood. Ms. Haroon agreed that she was only able to observe the top third of either suspect’s face. [ 22 ] Majid Alhereth was also working as a teller during the May 10 th robbery. He was the first to see the men coming through the glass doors into the bank with their hoods up and gloves on. He described being able to see “only the eyes” and top of either man’s face, because of their masks. Mr.

Alhereth said that the suspect in green, who did most of the talking, pointed a gun at the staff and yelled “give us all the money or I swear I will shoot.” Meanwhile, the man in black quickly jumped over the counter and searched through “all

the drawers” for cash; discovering relatively little, as it was near the end of the shift and most had been transferred to the vault. The suspect in black put the cash into the bag he was carrying, and after a brief exchange between themselves, the pair fled the bank and went to the right from the exit doors. The camera outside the bank captured images of the suspects’ partially covered faces as they exited. [ 23 ] Mr. Alhereth described both robbers as skinny, and approximately 5’11” in height.

He described the man wearing black clothing as “black” and the robber wearing green as “mixed” race, with curly hair at the top and the sides. Mr. Alhereth testified that the robber in green had brown eyes, which he noticed when the robber was pointing the gun at him. [ 24 ] A third teller, Mr. Rayman Sagu also testified. Mr. Sagu noticed the man in green first, as he was holding a gun. The firearm was black, and appeared to Mr.

Sagu, who had some experience with licensed handguns, to resemble a Glock. [ 25 ] He saw that the robber’s head was covered by the green hood, and his face was partially obscured by a black mask on the lower half of his face. Sagu described this suspects complexion as “lighter,” and of “mixed race.” He was slim, and tall, approximately 6 feet, and in his mid to late 20s. [ 26 ] Mr. Sagu was closest to the robber wearing black, who had leapt over the counter into the teller’s area. Mr. Sagu was in very close proximity to the suspect as he rummaged through all of the drawers in that area.

The suspect wore all black clothes, with a mask covering half his face, from the bridge of his nose down to his chin. Mr. Sagu described his skin as black, and darker than the other suspect. He had gardening gloves on his hands. Sagu described the second suspect as approximately 6 feet, slim, young, in his 20’s “at most”. While going through the drawers, the suspect continuously shouted “give us the money, give us everything” and “I will fucking shoot you” to the tellers. Both men used slang or street talk when speaking to each other, and the staff. Mr.

Sagu believes that the suspects stole approximately $1600 before fleeing. [ 27 ] Ms. Carmita Matute was the supervisor on staff on May 10, 2018. She testified that the robber in black came directly to her desk after leaping over the counter and clearing the tellers’ stalls. She described him as slim, and in his early 20s. While near her, he was nervously and frantically demanding money and trying to find cash. He was carrying a bag in his hands, and his skin was “very dark” or “African” black. She added that she could see his hairline, which was “frizzy” as he stood very close to her. Ms.

Matute testified that she got “a very good look at his hair and his skin.” [ 28 ] Ms. Matute described the skin colour of the robber in green as “fair” or “white,” and believed his hair was “blonde or reddish.” She described his build as tall and slim, but was not able to offer any additional detail, as her focus had primarily been on the suspect in black who was nearest to her during the robbery. • Mr. Fahed Qassim [ 29 ] Mr.

Qassim was walking his dog on Guildwood Drive towards Eglinton Avenue just before 8:00 p.m. on May 10 th , when he passed two men wearing track suits with zipped all the way up to cover their faces. Mr. Qassim described the man in the lighter hoodie as tall, black, with curly hair. The second man wore all black. They stepped out of the way and went around Mr. Qassim. He turned to thank them, but they had continued on. [ 30 ] The men were walking quickly towards the Scotiabank plaza. [ 31 ] Moments after he passed the two men, Mr.

Qassim crossed to the other side of Guildwood, where he saw a black BMW parked on the side of the street. Mr. Qassim noticed that the vehicle’s windows were heavily tinted, and that the rear right brake light was broken. In crossing the street, Mr. Qassim passed directly in front of the stationary BMW. He looked through the windshield and saw a male driver, holding a cellphone to his ear. The rearview mirror blocked Mr. Qassim’s view of the driver’s eyes and nose, but he could see that the man’s skin tone was brown, and he had distinctly “top heavy” hair.

He described the driver’s hair as “really close above the ears, then longer and higher on top.” [ 32 ] Once Mr. Qassim had made his way to the other sidewalk and taken a few extra steps, he saw the same two men who had passed him earlier in the track suits now running out of the catwalk from the Scotiabank plaza towards Eglinton. Only a minute or two had passed since he had first seen them. They were running quickly, and they looked scared. Both men sprinted directly to the BMW.

The man in the lighter (green) hoodie entered the front passenger seat of the BMW with a bag held closely to his waist, while the man in the darker hoodie got in the rear driver’s side. [ 33 ] Mr. Qassim heard the engine of the BMW revving loudly, as though the driver had applied the gas while the car was still in park. He looked at the car and memorized the license plate. He saw the BMW pull off quickly, and noisily. Mr. Qassim reported what he had seen to the police. [ 34 ] In cross-examination, Mr.

Qassim agreed that it would have been pointless for him to be shown a photo-lineup by the police to try to identify the driver, as he hadn’t seen all of the man’s face. The features which he distinctly recalls seeing of the driver were his skin tone, which he described as an “Indian complexion” and his unique haircut.

b) May 25, 2018 Scotiabank Robbery • Bank Video Surveillance [ 35 ] At approximately 2:20 p.m. on May 25, 2018, three men wearing athletic hoodies over their heads and masks over their faces entered the Scotiabank at 3000 Thomas Street, near the intersection of Winston Churchill Blvd. Surveillance video clips from three different angles within the bank captured their movements. [ 36 ] Two of the robbers, one wearing mostly black, and the other in light grey, leapt over the counter to the tellers’ area.

It appears that the robber wearing the grey hoodie initially held a gun in his right hand, but the item was later clearly seen in the hand of the robber in all black. The third robber, who wore a multicoloured hoodie of turquoise and grey initially remained on the opposite side of the

counter, before directing a fleeing staff member to return behind the counter. [ 37 ] None of the video clips provided could be said to offer a clear view of any of the suspects faces. The hoods worn by each of the perpetrators were so tightly drawn around their faces that little more than a small enclosure around the area of their eyes was visible. All three wore gloves on their hands. • Bank Witnesses [ 38 ] Ms. Mary Coric was working as a senior teller at the Scotiabank on May 25 th , 2018, having worked at that branch for 26 years.

She described seeing the three men rush in the doors, with two of them leaping the counter with ease. She tried to run away from the area of the wickets, but was redirected by the robber in the bright blue and grey hoodie, who forcefully led her back around the counter. She testified that she thought that he had a weapon in his hand by the way that he was holding it toward her, but couldn’t be certain of this. The robber in black who had leapt the counter was pointing a gun at all of the staff as he and the other suspect in grey frantically tried to empty out all of the wickets.

At one point, the robber in black set the gun down on one of the teller’s chairs, so that he could use both of his hands to try to unlock one of the drawers. All three of the robbers were shouting loudly at the staff and patrons to get down, and to give them the cash. [ 39 ] Based on their thin stature, speed and agility, Ms. Coric opined that the robbers were all young men, in their early 20s. She described all three of them as skinny and fairly tall. [ 40 ] Samira Rahim and Ahmed Tahir were also working at the Scotiabank on Thomas Street on May 25 th . Both described the robbers as extremely loud, and panicked.

Mr. Tahir recalls one of the suspects pointing a gun directly at him, while demanding that he open the drawers. He stepped back nervously as the suspects rummaged through all of the drawers of each wicket. Mr. Tahir recalled that one of the suspects’ skin tone was similar to his own, which he described as light brown, while another of the men had much darker skin. However Mr. Tahir was unable to attribute his recollection of skin tone to any particular suspect with certainty. [ 41 ] Mr. Ted Bradley was doing some banking within the manager’s office of the Thomas Street bank when it was robbed. When Mr.

Bradley saw the gun and heard the robber’s commands to get down, he did so. Mr. Bradley lay on the bank floor and continued watching through the door as the incident unfolded. Mr. Bradley described the perpetrators as “younger,” he estimated in their 20-30s, based on the way they moved so quickly and athletically. [ 42 ] Mr. Bradley saw the trio of robbers exit the bank and run towards a fence adjacent to a residential area, just across the parking lot from the bank. Mr. Bradley saw the men moving along the fence, looking up as though they were about to jump over it.

The fence in question led towards the area of Bonnie Street. [ 43 ] Mr. Said Mohamad was a driving instructor who had pulled up with a student to the south parking lot of the 3000 Thomas Street Scotiabank on May 25 th , 2018. From the vantage point of his vehicle’s driver’s seat, Mr. Mohamad saw three young men with hoods and masks sprinting out from the doors of the bank and across the parking lot, towards and then right past the front of his car. [ 44 ] Mr. Mohamad described the robbers as thin, young and black.

In a matter of seconds, they ran right through the parking lot towards the tall fence bordering the residences on Stoney Crescent. He watched all three men jump over the fence, and he called 911 and reported what he had seen. • Bonnie Street witnesses [ 45 ] Ms. Sidra Fahad lived on Bonnie Street, just on the other side of the fence which borders the area of the Thomas Street Scotiabank. On the afternoon of May 25 th , she was in her bedroom on the second floor of her home, looking down at her two children who were playing in their backyard.

Suddenly she saw two or three men jump over the back fence into her yard. Ms. Fahad described the men as tall, and fit. She was unable to see any part of their faces, as they were completely covered by what she believed to be balaclavas or masks, with their hands gloved. [ 46 ] As quickly as they landed in her yard, the men scaled the adjacent fence into her neighbour’s yard. From there, Ms. Fahad saw one of the men open the gate on her neighbour’s property leading between the houses, out to Stoney Crescent.

They then disappeared from her view. [ 47 ] Within a few minutes of having seen the men hop the fences, members of the Peel police canine unit arrived at Ms. Fahad’s residence to investigate and receive her information. [ 48 ] Ms. Abimbola Olaoyi resided at an address in the area of Stoney Crescent and Bonnie Street on May 25, 2018. Ms. Olaoyi had just returned to her house with one of her daughters in the afternoon when she saw a “slick” black car with heavily tinted windows coming along Stoney Crescent. The car was moving “very slowly” as it drove past. Ms.

Olaoyi said she felt uneasy about the way the car was driving. Ms. Olaoyi saw the vehicle stop at the side of the road on Stoney Crescent, facing Bonnie Street. She entered her house after seeing it come to rest there. [ 49 ] Ms. Olaoyi attempted to go out through her garage a short time later to do another errand, but she was stopped by a member of the Peel police on her driveway. There were several officers walking up her street, some of them with guns, others with dogs. She told officers about the car that she had seen and was directed to return to her house for her own safety. [ 50 ] Ms.

Olaoyi reported having focused on the car because it so closely resembled her other daughter’s BMW that she wondered if perhaps it was her daughter approaching. She testified that she did not believe that she had seen a car like that in her neighbourhood before. A video capturing the view of an exterior camera of another Bonnie Street neighbor from May 25 th was shown to Ms. Olaoyi, in which at least two black sedans are seen in the area that afternoon. Ms. Olaoyi agreed that these cars were black, but maintained that they weren’t as “slick” as the car which she had observed near her house that day.

• Canine Unit Tracking [ 51 ] Constable Kurtis Vaughan of the Peel Regional Police testified. He provided detailed testimony of the numerous local, national and international certifications which he and his service dog Timber had completed since they were paired in June of 2017. Timber and Cst. Vaughan have had tremendous success in their active deployment. Since October 2017, they were responsible for over 23 successful “finds”, which included tracking over challenging terrain such as concrete, and across a six-lane highway. Cst.

Vaughan’s expertise as a canine handler was not disputed by counsel for any of the defendants. [ 52 ] Cst. Vaughan’s role as a canine handler, which at its core consists in studying every movement and behavior of his service dog, such that he can properly interpret Timber’s success in maintaining his focus on the track under investigation. Cst. Vaughan testified that there was no possibility of mistaking Timber’s cues when he is “on scent:” his ears pop up, he moves low to the ground, his tail goes perfectly straight, and he becomes markedly stronger.

When Timber loses scent, his behavior also changes immediately. His head comes up, his tail goes from straight to vertical, and he immediately turns right to try to “recast” to find the scent. When Cst. Vaughan sees this behavior, he tries to help Timber reacquire the scent by “pushing past” the area where it was last detected, often in expanding circles on more porous surfaces on which there is a greater likelihood of the scent being detectible. [ 53 ] Cst. Vaughan was dispatched to the robbery call at Thomas Street at 2:23 p.m. on May 25 th .

He arrived on scene at 2:35 p.m. and was directed by a civilian to the fence where the suspects were seen climbing. Cst. Vaughan harnessed Timber and moved to the grass bordering the parking lot; a scenario which Cst. Vaughan described as a canine handler’s “dream”. Timber immediately signaled that he was on scent. They tracked west directly to an area on the fence, where Timber stopped and signaled again. Cst. Vaughan jumped onto the fence, and Timber immediately followed. They landed on the other side and Timber’s behavior indicated that he had quickly regained the track. Cst.

Vaughan saw two sets of fresh footsteps in the grass, leading to a side gate. Timber went straight to the gate, then followed it out to Stoney Crescent. [ 54 ] When he reached the sidewalk on Stoney Crescent, Timber went “heads up.” Cst. Vaughan then used the technique of trying to “cast” Timber by moving him towards a grassy

section in the immediate area to see if he could regain the track. The officer’s efforts were unsuccessful, as Timber was not able to re-acquire the scent in any of the directions on which the suspects might have fled on foot. Cst. Vaughan was confident that if there had been a continuation of the scent path on foot, Timber would have found it. [ 55 ] Cst. Vaughan later learned from Cst. Anderson that the area where he and Timber had lost track was similar to where a civilian witness had reported seeing a black vehicle, possibly a BMW.

c) Central Robbery Unit (“CRU”) Project team surveillance [ 56 ] Following the May 25 th robbery, a project team at CRU was officially formed in an effort to identify and apprehend whom officers believed to be the same group of suspects responsible for the May robberies. While significant surveillance of both K.K. and A.M. had already been conducted, a third target – S.W. – was then added, and group surveillance increased.

Given the use of a firearm in each robbery, the project team received approval for the assistance of the Tactical Unit, who began to conduct tandem covert surveillance of the targets in support of the CRU investigation. [ 57 ] Between May 25 th and June 15 th , several more sightings of the three principal targets in each other’s company were recorded by the surveillance team, affirming the strong links which existed between the parties.

d) June 15, 2018 Scotiabank attempted robbery [ 58 ] Surveillance officers observed A.M. pick up S.W. at his residence in the M.’s black Honda Civic at 2:49 p.m. on June 15 th . At 3:16 p.m., A.M. and S.W. were seen collecting a third unknown male in the area of Tomken and Canadian Place. That third male was wearing a Bass Pro Hat was later identified as K.S.. [ 59 ] At approximately 6:45 p.m., Cst. Vanderwal was positioned near S.W.’s residence on Fourwinds Drive when he observed A.M.’s Civic entering a townhouse complex just east of his position. He saw four occupants in the vehicle.

Nine minutes later, at 6:54 p.m. Cst. Vanderwal observed a red four-door Pontiac sedan exit the same townhouse complex at a high rate of speed. [ 60 ] Cst. Vanderwal could see that there were four people inside the red car. The Pontiac proceeded west, but immediately did a U- turn on the road and returned in the opposite direction. The officer saw something being discarded from the rear passenger window of the car onto the roadway before it sped off. Cst.

Vanderwal called out his observations to his surveillance team, suspecting that their targets had switched vehicles. [ 61 ] Other members of the surveillance team quickly confirmed Cst. Vanderwal’s suspicion. S.W. was seen in the front passenger seat, and A.M. to his rear, with an unknown male driver as well as an unknown fourth passenger.

A check of the vehicle’s license plate revealed that the car had been reported as stolen from an address in Peterborough four days earlier. [ 62 ] The red Pontiac was first observed attending a jewelry store where one of the occupants entered the store, then quickly exited and returned to the car. From there, the Pontiac went to the Scotiabank at Hwy #10 and Derry Road. [ 63 ] On its first attendance to the Scotiabank, the Pontiac idled in the bank parking lot for about 4 minutes. Then it pulled out of the plaza and began to go east on Derry Road.

Once it reached the intersection with South Line, the Pontiac did a U-turn and returned directly to the entrance of the bank. [ 64 ] Cst. Mark Finnie was parked in a spot facing the Scotiabank doors when the red Pontiac returned. The Pontiac drove right past Cst. Finnie’s unmarked car, allowing him to clearly observe the two occupants on the passenger side “masking” up by raising their hoods over their heads and up over their faces. As the car rolled slowly towards the entrance to the bank Cst. Finnie could see continued movement within it. The car reached the doors to the bank, and stopped.

[ 65 ] Cst. Sean Osborne was also stationary within the bank parking lot when the Pontiac approached the second time. Cst. Osborne described his view of the vehicle as clear and unobstructed. He testified that he observed all four passengers within the Pontiac with their hoods up. As the car got closer to the entrance of the bank he saw more movement which he believed was the two passengers putting on masks and gloves. [ 66 ] After no more than a minute, both passenger doors to the car opened, and Cst. Finnie and Cst.

Osborne saw two men get out, their faces and hands covered, one of them carrying a bag and what both officers believed to be a gun. Both Cst. Finnie and Osborne called out what they had seen over the radio, by saying “they’re masking up” and “gun.” [ 67 ] The two hooded men entered the first set of doors to the Scotiabank, but within seconds were sprinting back in the direction of the Pontiac, which had remained idling in the same spot, with the passenger doors still ajar. The two men hopped quickly back in. [ 68 ] Cst. Jake Henderson called out the takedown.

He drove directly at the suspect vehicle and stopped his vehicle right in front of it to prevent it from leaving. He looked through his windshield and held up his police badge, making eye contact with the driver and front passenger. The driver put the car into reverse and accelerated quickly, ultimately striking a parked civilian vehicle with considerable force. Cst. Henderson moved his police vehicle up against the driver’s side panel of the suspect car, and exited. Three other officers followed suit by advancing their cars towards the Pontiac to pin it in and arrest its occupants. [ 69 ] Cst.

Henderson raced to the driver’s side of the suspect vehicle, with his firearm drawn, pointed at the driver. His badge was visible and he was shouting “police, show me your hands, get out of your car” repeatedly. There were by now multiple CRU officers approaching the vehicle from all sides, making similar loud demands of the occupants. [ 70 ] Cst. Henderson looked directly at the driver, who looked at him, but kept his right hand down out of the officer’s view. The officer repeated his demand to the driver to show his hands. The driver did not comply. Cst.

Henderson opened the driver’s door, and repeated his demands, with his firearm still drawn. There was no response from the driver. [ 71 ] Cst. Henderson re-holstered his sidearm and attempted to physically pull the driver out of the car. The driver clenched up and leaned away from the officer in resistance. Eventually Cst. Henderson succeeded in extracting the driver from the car, but there was continued active resistance from the subject, who was of considerable size. Cst. Henderson struck the driver at least once in the back as well as in the knee in order to take the driver to the ground. Cst.

Davis came to assist in gaining control of the suspect, who was still resisting by keeping his hands tucked tightly under his chest. [ 72 ] The subject refused to show his hands, which Cst. Henderson and Davis were collectively not able to secure, despite their best efforts of wresting with the driver to release them. Within a few moments of this struggle, a member of the TAC unit attended and deployed a taser to subdue the driver.

Eventually compliance was achieved, and the driver was arrested, provided rights to counsel, and received medical attention to remove the taser prongs. [ 73 ] The driver was identified as M.R.-M. S.W. was located in the front passenger seat, still hooded and gloved, with a bag worn around his body. Within it, a large mallet was located. A.M. was in the rear passenger seat, also hooded and gloved, with a tan mask still over his face. There was an additional satchel located in the rear passenger seat, which contained a large kitchen knife.

Both A.M. and S.W. offered resistance to their extraction from the vehicle, and arrest. Tasers were deployed to gain their compliance and to effect their arrest. A fourth individual, K.S., was arrested from the rear driver’s side of the Pontiac. [ 74 ] All four parties were placed under arrest for robbery, and transported to the Division where their clothing was seized and submitted into property. A pair of white Nike Air Jordan shoes with distinctive blue soles and turquoise laces were seized from A.M. The shoes appeared similar to those observed on the video surveillance of the May 25 th robbery.

Arrest of K.K. [ 75 ] At 1:00 a.m. on June 16 th , investigators used the tracking device which had been installed on the BMW to find K.K. He was located operating the vehicle at a gas station in Mississauga by Cst. Henderson and Osborne. An unknown male was in the front passenger seat and an unknown female was in the rear seat. K.K. was arrested for the May robberies, without incident. [ 76 ] Cst. Henderson searched the BMW incident to arrest. He located two items of interest in the trunk of the car, which was accessible to the interior of the car via a compartment door between the back seat and the trunk.

These two items were a black knitted balaclava and a pair of yellow and green gardening gloves – similar to the items worn by the robber clothed in black during the May 10 th robbery. Items seized by Search Warrant [ 77 ] A search warrant was executed at the M.’s residence on June 18 th , both by members of the Central Robbery Unit and another unit of the Peel Regional Police. Forensic identification services members photographed the scene first, then the investigative teams conducted their search. [ 78 ] Cst.

Henderson located a gun holster along with a disassembled handgun in the cold cellar area beneath the stairs to the basement. Cst. Henderson did not believe that the item was consistent with the firearms which had been observed on surveillance being used in the commission of the May robberies, so the item was not seized by Central Robbery. [ 79 ] Within the bedroom which it was believed A.M. shared with his sister was photographed, then searched. There were two twin beds in the room, which was quite unkept.

From the bed on the left, which was essentially covered with clothing, several items of interest were seized. Among these were: grey Nike sweatpants with a white and blue waistband, darker grey sweatpants with light grey waistband, and a blue and grey Under Armour hoodie. These items of clothing were seized based on their similarity to those worn by one of the suspects to the May 10 th robbery. A.M.’s photo ID card from his school was also seized from the bedroom dresser.

[80] On the same day, a warrant was executed at S.W.’s residence at […]. Cst. Finnie searched S.W.’s bedroom and located his student ID card, as well as a black Nike hoodie similar to that which was worn by one of the robbers during the May 10th robbery. ANALYSIS

a) Leaney analysis [81] The Crown brought an application to permit the receipt of the lay opinion evidence of recognition from Cst. Michael Hranycey,with respect to the identification of S.W. in the surveillance footage captured from the first robbery. Cst. Hranycey was the communityliaison officer assigned to J. secondary school at the relevant time. Upon receiving the bulletin with still images prepared by the Central Robbery Unit in relation to the May 10th robbery, Cst.

Hranycey said that he immediately recognized the suspect wearing the black Nikehoodie with his face partially covered to be S.W. [82] A voir dire was conducted according to the principles of Leaney to determine if the two preconditions for admissibility weremet, namely: that the proposed recognition witness had a “prior acquaintance with the accused” and was “in a better position than thetrier of fact to identify the perpetrator”: Leaney, (SCC), [1989] 2 S.C.R. 393, at p. 413. [83] Between 2017 and 2019, Cst. Hranycey was the school resource officer assigned to J. high school, in Mississauga.

He attendedthe school daily as part of his regular duties, in which he served as a liaison between the school and the Peel Regional Police. Hisresponsibilities included doing presentations to students on various safety issues, attending school assemblies, conducting classroomvisits, and having regular interactions with students in the hallways. [84] On May 16, 2018, Cst. Hranycey received the bulletin from the Central Robbery Bureau of Peel Regional Police, which included still photographs from the video surveillance of the May 10th robbery at the Scotiabank at 660 Eglinton West. Cst.

Hranyceywas aware of the location of the bank, as it is only a short 5-minute drive from the school. It was not suggested to the officer that any ofthe students of his school were subjects. [85] Upon viewing the bulletin, Cst. Hranycey said he recognized the male party wearing the black hoodie in the photos to be S.W. He testified that he made this recognition based on his dealings at school with him, and the resemblance between the person he knew,and the one depicted in the images – primarily based on “his eyes, skin complexion and build.” [86] Cst.

Hranycey testified that he believed S.W. to have been approximately 5’11” to 6’ in height, with black skin and an averagebuild, which he believed to be consistent with the images in the bulletin. [87] Another feature which the officer said he recognized of S.W. from the images were S.W.’s “dopey” eyes. Cst. Hranyceyexplained that what this descriptor meant to him was that S.W.’s eyes were “sunken, like his eyes were always tired, and they were closertogether than the average person”.

The officer said that he remembered these characteristics of S.W.’s eyes from his first meeting andsubsequent interactions at school, and he believed that the portion of the man’s face depicted in the CRU bulletin was definitivelyS.W.’s. Cst. Hranycey conceded that he never made a note of S.W.’s eyes having these distinctive characteristics following any of hisinteractions at J. high school. The officer stated that it would not have been his habit to make notes about students unless there was aparticular incident for which such notations would have been warranted. [88] Cst.

Hranycey said that he saw S.W. at school regularly, on average about 12-24 times a month, between February and May2018, at a minimum of once or twice a week. In terms of more direct or prolonged contact, Cst. Hranycey explained that on “many”occasions, he was called to the VP’s office to speak with S.W. directly about his non-attendance in class. The officer estimated havinghad approximately one to two dozen such interactions, as well as around half a dozen direct conversations with S.W.

In terms of theduration of these interactions, the officer estimated that they would have lasted “no more than several minutes”. Cst. Hranyceyexplained that students such as S.W. whose attendance was less than fully compliant tended to attract more of his focus and attention as aschool resource officer. [89] On April 5, 2018, the officer had direct contact with S.W., for the purpose of arresting him on a breach of a previous courtorder. Cst. Hranycey personally transported S.W. from school to the division, and remained with him while he was booked into thestation.

During this process, the officer was within the range of a few feet from S.W. while speaking and interacting with him. [90] Having heard the evidence and submissions of counsel, I have concluded that the Crown has established that Cst. Hranycey’s opinion evidence of recognition in relation to S.W. in the May 10th, 2018 video surveillance is admissible. [91] Cst. Hranycey had known S.W. for approximately three months, prior to his observation of the central robbery bulletin capturing images of the May 10th robbery. During that period, Cst.

Hranycey described having had regular contact with S.W. within thecontext of his role as the community liaison officer assigned to S.W.’s high school. There was reason for Cst. Hranycey to be aware ofwho S.W. was, as S.W. struggled with regular class attendance, which brought him to the vice-principal, and by extension, Cst.Hranycey’s attention. Cst. Hranycey spoke directly with S.W. in the VP’s office on “several occasions” during which time he had direct,face-to-face conversations with S.W., within close physical proximity, for a period of several minutes. Cst.

Hranycey would inevitablyhave had the opportunity to make superior observation of S.W.’s facial and physical features during these conversations than the courthas had the opportunity to make while observing S.W. in court. [92] Still more significant would have been the opportunity for observation and recognition of S.W. on the occasion of Cst.Hranycey personally arresting him in April 2018. On this occasion, the officer’s sole attention would have been focused on the task ofconveying the words of arrest, rights and caution to S.W. as his young detainee.

The officer went on to transport S.W. to the division,and remained with him while he went through the process of being lodged: a process of over 40 minutes’ duration, during which theofficer remained in S.W.’s direct company. [93] On behalf of S.W., Mr. Erskine characterized Cst. Hranycey’s opportunity to have recognized his client in the CRU bulletin as

being effectively limited to this latter interaction of his arrest, which counsel characterizes as the only meaningful interaction which theofficer had to observe him.

Counsel also urged me to conclude that the officer’s description of S.W.’s “dopey eyes” is an entirelysubjective descriptor which ought to be rejected as a meaningless basis for the officer’s purported recognition of S.W. [94] However, it was clear from the officer’s evidence that it was on the basis of the totality of his prior acquaintance with S.W.,including the more mundane day-to-day experience of seeing S.W. in the hallways at J. high school, to needing to meet with him individually on several occasions to speak about his attendance record, to finally effecting his arrest on April 5th, 2018 that Cst.Hranycey said he was confident in his recognition of S.W. in the images contained in the Central Robbery Bulletin on May 16, 2018. [95] While I do agree with the tenor of Mr.

Erskine’s criticism of the officer’s use of the unfortunate descriptor of “dopey” todescribe S.W.’s eyes, Cst. Hranycey did consistently explain with more objective terms what it was that he meant by this description. Hesaid that S.W.’s eyes appeared to be “sunken,” “tired” looking, and close together. The officer testified that he remembered this featureof S.W.’s eyes from having spoken to him in the hallways, and at the school office, as well as during his arrest.

These more neutralterms are among those which I accept that the officer relied on, in addition to his observation of the skin tone and stature of the persondepicted in the CRU bulletin. [96] At the threshold determination under Leaney, the court must decide whether there is “some basis” for the opinion onrecognition, before it can be given any weight: Berhe, 2012 ONCA 716, at para. 21.

The “prior acquaintance” requirement underLeaney is aimed at precisely this question: allowing the trial judge to sort out whether the witness is sufficiently familiar with the personsought to be identified, such that they can be said to have articulable basis for their opinion. I conclude that the evidence of Cst.Hranycey does satisfy this threshold. The officer had upwards of two dozen interactions with S.W. during the four months of beingacquainted with him as the resource officer at J. high school.

Several of these interactions included direct verbal exchanges of someprolonged duration, and in close proximity. The officer was able to describe the features of S.W.’s face and stature upon which he reliedin offering his opinion on the identity of the suspect in the CRU bulletin. I accept that the officer’s position was superior to the court’sfor the purpose of the identification of the suspect captured on surveillance, and his evidence is admissible on this basis. The weight tobe given to this evidence, on the ultimate issue of identification, is a separate issue for determination.

a) Similar Fact Application [97] The Crown applied to have the court consider evidence across counts as similar fact evidence going to identity. Ms. Goulin filedan application and authorities in support of her argument, which was made at the conclusion of the trial. Defence counsel also providedauthorities on the specific issues of similar fact going to identity and the appropriate boundaries of inference-drawing in this context. [98] The parties essentially agree on the law but disagree on the application to the evidence in this case.

I will summarize the generalprinciples of law and then apply that law to the evidence to determine admissibility of the proposed similar fact evidence. Applicable Legal Principles [99] Evidence of similar acts is presumptively inadmissible, whether it is evidence proposed for use across counts or evidence ofextraneous acts: R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, at para 31; R. v.

Durant, 2019 ONCA 74, at para 82.Exceptions to the inadmissibility of similar acts can be made where the probative value of the evidence, in legitimate paths of reasoning,outweighs its prejudicial impact: Handy, at para. 42. [100] The probative value of similar fact evidence derives from the objective improbability of coincidence. Probative value isassessed in relation to the specific issues at trial to which the impugned evidence is said to relate: Handy, at para. 78; R. v. Kanagasivam, 2016 ONSC2548, at para 20.

Different considerations apply depending on the use sought to be made of the similar fact evidence. [101] Where the similar fact evidence is tendered to assist in proof of identity, as it is here, it is well-established that a high degreeof similarity is required: Handy, at paras 77-80; R. v. Arp, (SCC), [1998] 3 S.C.R. 339, at paras. 43, 45. The standard issometimes described as “strikingly similar” or “highly distinctive” in the nature of a “signature”.

The high standard of similarity can bereached by reference to one signature, or a collection of significant similarities: Durant, at para. 90. [102] In assessing the probity of similar fact evidence, the court should first consider the manner of the commission of theallegedly similar acts to determine whether they are likely committed by a common actor or group; Arp, at para. 45; R. v. Perrier, 2004

SCC 56 , [2004] 3 S.C.R. 228, at para. 21. The greater the similarity, the higher the probative value that the evidence will beassigned. [103] In assessment of similarity in the manner of commission of acts looks to factors such as: proximity in time and place,similarity in detail and circumstances, number of occurrences, distinctive features, intervening events, and any other factors raised by theparties to address the unique circumstances in a given case: Handy, at para. 82; Perrier, at para. 22.

This assessment is neither a closemicroscopic dissection of the evidence, nor is it one which flies too far overhead and views broad associations as significant: R. v.Shearing, 2002 SCC 58 , [2002] 3 S.C.R. 33, at para. 60. It is a global assessment, rooted in common sense. [104] Where this first threshold is met, the judge must go on to determine whether there is a link between the accused and thealleged similar act: Arp, at para. 54.

There needs to be “some evidence” on which the trier could find that the similar acts were those ofthe accused, as a precondition to admissibility: Perrier, at para. 23; Kanagasivam, 2016 ONSC 2548, at para. 23. The evidence oflinkage must be more than mere opportunity, but need not reach a probability or likelihood standard.

The “some evidence” thresholdhas been described by various members of the Supreme Court of Canada as “not very high” (per Major, J. in Perrier, 2004 SCC 56, atpara. 23), or as a “low one”: (per Moldaver, J. in Jesse, 2012 SCC 21, at para 63.) [105] When similar fact evidence is proposed on a multi-count indictment or information, the link between the accused person andone count will be relevant to identity on any other counts which have been found to have the requisite degree of similarity in the mannerin which they were committed: R. v.

McCormack, 2009 ONCA 72, at para. 59; Arp, at para. 53. [106] There is an added layer of analysis when the alleged acts are those of a group. Just because a person acts with a group on oneoccasion does not mean he acted with the group on another: Perrier, at para 25; Kanagasivam, at para. 43. Owing to this reality, therequirement of evidence that links the accused to the similar acts is particularly important in the group context. [107] When a group is alleged to have committed the similar acts, the court must first determine if the group composition is static orchanging.

Where there is a static group, in the sense that the group does not act without all of its members present, and participating,then the signature of the group can become the signature of the accused. Perrier, at para. 25. [108] In a rotating group environment, there is a recognized risk that simply by virtue of an individual’s membership in a group, hemight become implicated in crimes that he didn’t commit, based solely on the fact of his association: Kanagasivam, at para 45. [109] Perrier prescribes the method for assuaging this risk.

It is the evidentiary requirement of a specific connection between theaccused and the similar acts of the group, as a precondition to admissibility. The link can be established in one of two ways:

a) throughevidence that the accused played a sufficiently distinctive role in the crimes that no other member of the group or person could haveperformed it; or,

b) by “other independent evidence” linking the accused to each crime. [110] Without one of these extra links, the required nexus between the similar fact evidence and the acts of a particular accused isabsent, and it will not have sufficient probative value to outweigh the prejudice caused by its admission. [111] As a final practical matter, the Crown in this case bears the onus of demonstrating, on a balance of probabilities, that theprobative value of the similar acts outweighs the potential prejudicial effect such that it should be admitted across counts to aid in proofof identity.

Although credibility and reliability assessments are generally not admissibility concerns, there is a limited assessment ofcredibility and reliability of evidence required to consider probative value in the similar fact application: Handy, at para. 134; Arp, atpara. 47; McCormack, at paras. 54, 64. Positions of the Parties [112] Ms. Goulin submits that there are sufficient similarities between the robberies to conclude that they were committed by the same group.

She argues that the membership of the group was mostly consistent for the May 10th and May 25th incidents, and that notwithstanding the change to the composition of the group on June 15th, there are sufficient evidentiary links between each member andeach of the earlier offences to allow for the admissibility of the similar fact evidence on the issue of identity. [113] Counsel for A.M., S.W. and K.K. collectively submit that the evidence that the Crown seeks to rely on lacks the degree ofsimilarity and probity necessary to achieve threshold admissibility, on the question of group activity, at the first stage.

It is argued thatto the extent that there are similarities between the incidents, the similarities are in respect of factors too generic to be consideredprobative. The defence also maintain that there are many dissimilarities which point away from the commission of the offences by thesame group. [114] On behalf of each of their clients, all three counsel further argue that the Crown’s evidence fails to establish the additionalspecific link between the individual accused and each robbery necessary before similar fact evidence can be considered on the issue ofidentity in the rotating group context.

Analysis [115] I will first assess the similarity between the acts, then consider linkage evidence, and finally weigh the probative value of theevidence against its prejudicial effect.

i) Is there a sufficient degree of similarity between the acts to conclude, on a balance of probabilities, that the same group likelycommitted the acts in question? [116] Ms. Goulin relies on the following similarities between the May 10th and 25th robberies: Location/Geographical Proximity:

(1) All of the robberies were committed at Scotiabanks, in Mississauga;

(2) All of the locations robbed were in the west end of Mississauga, within a short distance of where each of the suspects lived, and went to school;

(3) All of the locations were within plazas which bordered on residential neighbourhoods, and were highly accessible on foot;

(4) No single location was robbed twice. Time Frame:

(5) The robberies occurred within the span of two weeks. Time of Day:

(6) Time of day of all counts was similar, although not distinct. All of the robberies happened in the afternoon or evening, after school hours. The times ranged from 2:30 p.m. to 7:50 p.m. Clothing Worn:

(7) The perpetrators on each date wore hoods over their heads, drawn tightly;

(8) The perpetrators on each date also wore masks – either balaclavas under the hoods, or scarves tied above them;

(9) The robbers wore gloves, which were always mismatched;

(10) One robber carried a bag or backpack over his body during each robbery. Manner of Commission:

(11) The “takeover” style of the robberies was the same, wherein the robbers hurdled the tellers’ wickets upon entering, and focused their attention almost exclusively on the tellers’ drawers;

(12) There were no other “takeover” style robberies at Scotiabanks in Mississauga in May or June 2018. Demands/Threats:

(13) In each of the completed robberies, the perpetrators entered the banks making loud, constant and aggressive demands of both the tellers and patrons to get down and to hand over the money. Use of Weapons:

(14) One firearm was brandished in each of the robberies;

(15) In both May robberies, the gun was pointed directly at the tellers at close range. Whereas staff members at the May 10 th location recalled one of the robbers threatening to shoot, the staff on May 25 th did not hear any such specific threat. Number of Assailants:

(16) For the May 10 th robbery, two assailants entered the bank. On May 25 th , there were three. Foot to Vehicle Getaway:

(17) In each of the robberies, the perpetrators fled the bank plazas on foot in the direction of residential streets where it is believed that they were picked up by a getaway vehicle. [ 117 ] The assessment of whether similarities rise to the degree of significance needed to admit evidence on the issue of identity is not meant to be a mathematical tally, but rather a holistic assessment of the similar and dissimilar factors: Shearing , at para. 60 ; Kanagasivan , at para. 149. [ 118 ] Considering all of the factors reviewed above, I find the events involving the May 10 th and May 25 th robberies to be so significantly or strikingly similar as to overcome the possibility of coincidence.

On the whole of the evidence, I find that these robberies were committed by the same group. I am not troubled by the variations in words used, or the number of assailants who participated. I do not find that these dissimilarities, and other minor differences identified, to detract from the cogency of the close proximities of location, nature, clothing, and manner of commission of these offences. [ 119 ] I acknowledge that on May 25 th there were three robbers, not just two, who entered the Scotiabank on Thomas Street. It is in this sense admittedly different.

However, I have found that it fits the pattern of distinct similarity, even with the inclusion of a rotating group member. In McCormack , Justice Watt held that while a unique trademark common to all incidents sponsors admission, so too do a number of similarities in combination which “by their cumulative effect, warrant admission” (at para. 51).

I have reviewed the very strong similarities in location, time frame demands, approach, clothing, weapons, departure, flight and roles of individuals in reaching my conclusion that this set of offences are so significantly similar that I am satisfied that they were committed by the same group. [ 120 ] For the most part, the similarities across counts are quite striking in nature. The robberies all take place at Scotiabanks, in strip

plazas, within a small geographical radius. The offences were brief, and committed quickly and hurriedly. The robbers in each incident displayed impressive speed and agility in order to leap the counters with ease. In both sets of robberies, the clothing worn by the perpetrators was an effective uniform: of a tightly bound hoodie coupled with a face mask or scarf, as well as gloves. A handgun was pointed by one of the robbers in each incident, while all members of the group used loud verbal demands to force the tellers’ compliance.

Witnesses to both incidents observed the masked robbers running from the location of the banks, towards residential areas. I have given careful consideration to the dissimilarities which existed, but conclude that they were likely the product of different members playing different roles on each occasion. [ 121 ] I am satisfied that on a balance of probabilities, that the acts are so strikingly similar that they were likely committed by the same group.

Stage Two: Evidence of “Linkage” evidence to individual suspect(s) [ 122 ] At the second stage of the similar fact analysis, I must determine whether there is a specific evidentiary connection which can be drawn between each accused and the similar acts of the group.

Unless it can be established that the individual played a distinctive role in the crimes, there must be “other independent evidence” to establish their linkage to it: Perrier , at para. 25 . [ 123 ] Importantly, the fact that A.M. and S.W. have admitted to being members of the group who participated in the June 15 th incident cannot be relied on to suggest that they acted as members of the group on earlier occasions: Perrier , at para. 40 . [ 124 ] The admissibility test for linking an accused to the similar acts of a rotating group is “some evidence,” and that evidence must be comprised of something other than his simple membership in the group.

In Kanagasivam , Justice Fairburn explicitly rejected the argument that a higher threshold for the linkage test should be imposed in the group context for assessing similar fact evidence (at para 50). What is required is “some independent evidence” of linkage in order for the evidence to be admitted against each accused, for each count. [ 125 ] After considering all of the evidence, I have concluded that the Crown’s similar act application with respect to S.W. and K.K. fails, due to a paucity of independent evidence capable of linking them to each count.

I have reached a different conclusion with respect to A.M. [ 126 ] With respect to the May 10 th robbery, the following is the evidence which I conclude is available to link A.M. to the incident: • Witness descriptions of the robber in the green hoodie (assessed for consistency or inconsistency with what is known of A.M.); • The surveillance videos and stills from the scene, which permit my own observation of the similarities between the suspects A.M., as per Nikolovski ; • The evidence that A.M. is left-handed. [ 127 ] The threshold assessment of “some” evidence of linkage has been described as a relatively low one.

It must be remembered that the determination being made at this stage is not on the ultimate issue of whether identity has been proven beyond a reasonable doubt. [ 128 ] In assessing the evidence of linkage between A.M. and the May 10 th robbery, I have considered the descriptions offered by the witnesses on scene and compared them to what I know, based on my own observation of A.M., over the course of this 26 day trial. [ 129 ] The suspect in the green hoodie was described by the majority of witnesses as “light skinned black” or “mixed race,” tall and slim. One witness described him as white.

Two of the tellers who were fairly near to him were able to describe his hair, which was quite visible at the sides of his head and forehead, due to his somewhat gaping green hoodie. The witnesses said that his hair was curly, or tightly curled, which led them to deduce that the suspect was partially black. One teller was able to recall that the suspect’s eyes were brown.

His age was estimated to be in his early 20s. [ 130 ] I had the benefit of comparing the video surveillance still and videos from May 10 th to both the runsheet photo of A.M. which was introduced as an exhibit, as well as to A.M. himself before me in court each day for in excess of a month-long trial. I also learned from the evidence called that A.M. is left-handed, as is the robber in green wielding the gun in his left hand during the robbery.

I am satisfied by my own comparison of the consistency of the physical and facial features discernible on the May 10 th video, along with the descriptions of the scene witnesses, to what I know of A.M., to conclude that there is “some” evidence of linkage between he and the May 10 th robbery. [ 131 ] The evidence of linkage between A.M. and the May 25 th robbery is much more straightforward. Four items of clothing which bear a striking similarity to those items worn by one of the suspects during the Thomas Street robbery were seized from A.M.

These items are sufficiently unique, and therefore probative, to achieve the threshold of “some evidence” of linkage between A.M. and the May 25 th incident. Stage Three: Balancing Probity and Prejudice [ 132 ] Finally, I must balance the probity of the similar fact evidence applicable to A.M. against its potential prejudice. The probative value of the similar fact evidence of identification is high, as it goes toward the only live issue in this case. There is no disputing that the two May robberies transpired exactly as shown in the videos: the only question is who committed them.

The threshold of significant or striking similarity has been met, and the evidence is patently probative. [ 133 ] The similar fact evidence here was received as part of a blended hearing, as part of the totality of evidence which would otherwise have been heard in respect of all counts. There was no time or complexity added to the proceedings, and no risk that bad

character evidence, not otherwise considered, would lead me towards impermissible propensity reasoning. Sitting as a judge alone, I caution myself that I cannot reason that an accused person who is linked to one allegation of criminality is therefore the sort of person who is more likely to have done the other acts alleged. The prejudicial risk of admitting similar fact evidence on a judge alone trial is recognized to be slim to none.

Conclusion on Admissibility [ 134 ] As a result of the independent evidence of linkage between A.M. and both the May 10 th and May 25 th incidents, the similar fact evidence application is allowed, in order to permit cross-count consideration on the issue of identity. [ 135 ] Briefly stated, while there was clear evidence of linkage between both S.W. and K.K. to the May 10 th incident, I have concluded that there is a lack of independent evidence of linkage between either party and the May 25 th incident in order to permit consideration of similar fact evidence on the issue of identity across counts.

The similar act application in respect of S.W. and K.K. is dismissed. [ 136 ] I turn now to consideration of all of the evidence as it applies to the Crown’s case against each defendant on its merits, in reverse chronological order, beginning with the offences on June 15 th , 2018. June 15, 2018 Scotiabank Robbery [ 137 ] A.M. and S.W. both conceded that convictions should be entered for each of them on counts 10 & 11: Attempted Robbery and Disguise with Intent.

These concessions were very reasonably made, given that both young men were caught fleeing from the scene of what was obviously a botched robbery attempt, while visibly disguised.

Convictions are hereby entered against both A.M. and S.W. on these counts. [ 138 ] A.M. and S.W. jointly dispute the remaining count of Possession of Stolen Property, on the basis that the Crown’s evidence has failed to establish that they had either knowledge or control of the stolen red Pontiac in which they rode to the scene of the robbery. [ 139 ] M.R.-M. disputes both the Attempted Robbery charge and the Possession of Stolen Property charge, based on a similar argument, of a lack of evidence of his mens rea with respect to both counts.

Attempted Robbery: M.R.-M. [ 140 ] M.R.-M. was never a target of police surveillance or suspicion in relation to any of the earlier robberies. His first appearance in this investigation was on the date of the final takedown when he was arrested as the driver of the stolen Pontiac which delivered A.M. and S.W. to the location of the attempted robbery. [ 141 ] M.R.-M.’s observed involvement with the alleged co-conspirators began sometime earlier on the evening of June 15 th , when A.M. was observed pulling his Honda Civic containing three other occupants into a townhouse complex on Fourwinds Drive .

Nine minutes later, the stolen red Pontiac carrying four occupants, including A.M., raced from the complex. M.R.-M. was its driver.

While there is no direct evidence of M.R.-M. having been one of A.M.’s three passengers just prior to the vehicle swap, it is both safe and logical to assume that he was. [ 142 ] I agree with the Crown’s characterization of the quick transfer of vehicles and hurried departure from Fourwinds towards the area of the robbery as powerful evidence of all parties’ knowledge of both the vehicle’s status, and the planned use to which it was about to be put. [ 143 ] The evidence of the car’s movements is also highly probative of M.R.-M.’s knowledge of the events which were about to unfold.

After a brief and somewhat suspicious stop at a jewelry store, during which time K.S. entered the store while M.R.-M., A.M. and S.W. awaited him, M.R.-M. cruised by the front doors of the Scotiabank on Derry Street, pausing for just a few minutes before exiting again. After a very short drive away from the bank, M.R.-M. did a U-turn and proceeded directly to the entrance doors of the Scotiabank a second time. [ 144 ] While this was happening, police officers saw all parties – including M.R.-M. – put their hoods up inside the car.

Two of the occupants, including S.W. who was sitting directly beside the driver, also put on masks and gloves. S.W. had a bag containing a mallet slung over his shoulder, and another bag inside the car, which did not belong to the owner, included a large knife. [ 145 ] M.R.-M. dropped A.M. and S.W. right at the front door to the Scotiabank, from where they burst into the branch, leaving their cars doors open as they went. M.R.-M. stayed on his mark, very clearly waiting for those two to return.

The suggestion that M.R.-M. believed that his masked friends were attending the bank to make a lawful withdrawal at the ATM defies both reason and credulity. [ 146 ] Finally, M.R.-M.’s after-the-fact conduct, of accelerating in reverse in an effort to evade apprehension by Cst. Henderson’s initial advance of his police car is further evidence of his knowledge of the unlawful act which had been planned by the group in advance. Had M.R.-M. been ignorant of the criminality of A.M. and S.W.’s short trip to the Scotiabank, he would have had no reason to have sped off in such a panic from Cst.

Henderson that he caused a collision with a parked vehicle. [ 147 ] I am satisfied that the evidence of M.R.-M.’s knowledge of the plan to commit a robbery on June 15, 2018 has been well established beyond a reasonable doubt. Pursuant to s. 21(1)(b), I find M.R.-M. guilty of count 10, attempted robbery. [ 148 ] Finally, M.R.-M.’s application under s. 7 of the Charter for alleged excessive force is hereby dismissed, with reasons to follow. Briefly stated, the applicant failed to establish that investigators used in excess of the force that was reasonably necessary to effect this objectively high-risk takedown.

Possession of Stolen Property: M.R.-M., A.M. and S.W.

[149] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware thathe or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist withan act of control. (Morelli, 2010 SCC 8, at para. 16). [150] The mens rea of possession can be established by evidence of actual knowledge or of willful blindness. Willful blindness is thechosen state of deliberate ignorance.

An accused who suspects that property is stolen but who declines to make the inquires that willconfirm their suspicion, preferring instead to remain ignorant, is culpable: Lagace (2003), (ON CA), 181 C.C.C. (3d)12 (Ont.C.A.) at para. 28; Briscoe (2010), 2010 SCC 13 , 253 C.C.C. (3d) 140 (S.C.C.).

a) Knowledge [151] The assessment of willful blindness must be made on a subjective standard. The question is not whether the accused should havebeen suspicious, rather it is whether s/he was, in fact, suspicious: Malfara, (2006) (ON CA), O.J. No. 2069 (C.A.). [152] The Crown submits that the doctrine of recent possession is also available to support an inference of the parties’ knowledge withrespect to the status of the vehicle.

Any number of factors can be considered in determining whether a possession of a stolen item is“recent,” including: the nature of the object, its rareness, the readiness by which it is likely to pass to another, and the ease ofidentification: Saieva v. The Queen, (SCC), [1982] 1 S.C.R. 897; Morgan, 2013 ONSC 1522, at paras. 58-62. [153] Mr. Thomas Monico was the registered owner of the Pontiac Pursuit G5. He last saw his car in his driveway in Peterborough, on the evening of June 10th, 2018. The keys to the car had been on the dresser in his adult son’s bedroom.

The keys, along with the car,were apparently stolen sometime around 10:30 p.m. Several of Mr. Monico’s personal items were within the car when it was seized bypolice at the takedown, including his work glasses, a scarf, and several pairs of gloves. [154] There is no evidence before me of how any of the defendants gained access to Mr. Monico’s Pontiac, which they used 5 daysafter it’s theft to commit a robbery.

Notwithstanding the absence of this evidence, I am satisfied that the knowledge of each party can bereadily inferred from the evidence which is available. [155] I conclude that the doctrine of recent possession is available to infer knowledge in this case. While presumption of knowledgefrom recent possession has been held not to apply to common, easily transferable articles which are held for long periods of time, thesame cannot be said for articles lacking these traits. M.R.-M., A.M., and S.W.’s use of a vehicle to which they had no connection towhatsoever makes their possession of it totally unexplained.

In other words, I do not consider a vehicle to be an item which is “readilytransferable” between teenagers. Also, within the vehicle were personal items which were plainly suggestive of ownership by someoneelse. Finally, the evidence of the group’s rapid transfer between A.M.’s Honda Civic and the red Pontiac just before the robbery wascommitted is powerful and convincing evidence of all parties’ knowledge of the nature of the item.

Their conduct, in moving from avehicle registered to one of the culprit’s family, to another vehicle for which there was no such association was logically and internallyaimed at avoiding detection by police. I am satisfied that M.R.-M., A.M. and S.W.’s knowledge of the status of the stolen vehicle hasbeen proven beyond a reasonable doubt.

b) Control [156] The evidence of M.R.-M. control of the stolen Pontiac could not be disputed. He was the sole driver of the vehicle both before,during and after the robbery. The elements of both knowledge and control by M.R.-M. have therefore been established beyond areasonable doubt. A conviction will be entered on count 12. [157] Control is a more elusive concept to prove against passengers of vehicles.

Can it be said that the Morelli requirement of an “actof control” by A.M. and S.W. over the stolen vehicle has been proven beyond a reasonable doubt? [158] Minutes before the four parties were first seen in the red Pontiac, they had been observed in A.M.’s Honda Civic which he hadbeen driving.

While it may be tempting to infer that by his relinquishing the role of driver, and taking the rear passenger seat in thestolen Pontiac as one of the principals to the anticipated robbery, A.M. must have directed M.R.-M. to assume the role of driver, and thusexercised an “act of control” over the vehicle, the evidence is insufficient to permit such a finding. There simply is no evidence of eitherA.M. or S.W.’s control over the vehicle itself, such that they could be fixed with the legal responsibility for its possession. [159] Count 12 is dismissed against both A.M. and S.W.

Identification evidence & Nikolovski [160] The Crown seeks to rely heavily on the video and photographic evidence from both the May 10th and 25th robberies, as well asthe Central Robbery Unit surveillance images as among its primary sources of identification evidence for the remaining counts againstA.M., S.W. and K.K.

Before analyzing the individual items of evidence sought to be relied on against each person, I refer to thefollowing principles of law which guide my analysis with respect to each. [161] It has repeatedly been recognized by courts in Canada that eyewitness identification has many frailties and has often been one ofthe bases for wrongful convictions. I am very mindful of these risks. [162] The Supreme Court of Canada also recognized in Nikolovski[2] that many of the classic “frailties” of identification evidence donot exist. In the Nikolovski analysis, the eye “witness” under consideration may be a surveillance

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