2021 QCCQ 13370, 2021 QCCQ 13370

R. c. Keramarios 2021 QCCQ 13370 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No.: 500-01-213364-208 DATE: December 23, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JOSÉE BÉLANGER, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

NIKITOS KERAMARIOS Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is facing the following charges: in Montreal, robbery at the Caisse populaire Canadienne Italienne (344(1)(

b) Cr. C .); uttering threats to cause death or bodily harm to one of the bank’s clients (264.1(1)(

a) and (2)(

a) Cr. C ); assault causing bodily harm against one of the bank’s clients (267(

b) Cr. C .). [ 2 ] The facts underlying these three charges took place on December 15, 2020, in Montreal. Issues • Has the Crown established the identification of the accused beyond a reasonable doubt? • Has the Crown established the essential elements of the offences alleged against the accused beyond a reasonable doubt?

The Crown’s theory of the case [ 3 ] The principal charge against the accused is the robbery at the Caisse populaire Canadienne Italienne (Caisse Desjardins). [ 4 ] In accordance with its theory of the case, the Crown intends to show the Court that the accused was followed after having committed the robbery at the Caisse Desjardins. Like Little Thumb, he left tracks all along his path, as will be demonstrated by excerpts from certain surveillance cameras. When he left the Caisse, he took a taxi.

At one point, the accused went to the Bank of Montreal (BMO), where certain employees recognized him because he had an account there. [ 5 ] A search warrant was obtained for the address 7100 Querbes Avenue, Apartment 1, which the Crown claims is the accused’s apartment. [ 6 ] During the search, which also took place on December 15, 2020, the police found clothing and other objects, which, according to the Crown’s theory of the case, are related to the robbery at the Caisse Desjardins. They also found $353, including certain marked bills that came from the Caisse Desjardins.

The Crown’s evidence Modesto Pompeo [ 7 ] He has been a police officer with the SPVM for 23 years, and with the major crimes squad since 2019. He is one of the principal detectives on this case. He assisted his colleagues in the analysis of the crime scene located at the Caisse Desjardins and questioned certain witnesses. He was there when his colleague Linda Salvoni from the forensic identification unit took photos of the various places under investigation.

[ 8 ] Investigator Pompeo filed photos of the Caisse Desjardins, [1] the BMO located at 520 Jean-Talon Street West, [2] and the search of 7100 Querbes Avenue, Apartment 1. [3] [ 9 ] He also filed a compilation of certain excerpts from several surveillance cameras. [4] Asmae Sougratti [ 10 ] On the afternoon of December 15, 2020, she was working as a teller at Desjardins’ Little Italy branch located at 6995 Saint- Laurent Blvd. in Montreal. She has been a teller for two and a half years. [ 11 ] There was no dedicated welcome counter that day. Ms.

Sougratti and her colleague, whose counters are located at the front of the Caisse, welcomed the clients. At approximately 1:30 p.m., when she came back from her lunch break, she saw two clients waiting and a man who wanted to enter through the front door. She opened the door for him using the audible warning device. [ 12 ] He entered and walked quickly towards her. He stopped in front of her and banged on the counter. She backed up. His right hand was in his jacket pocket, and he said to her, [ translation ] “this is a hold-up”.

He was shouting a lot. [ 13 ] First, she turned around, opened the drawer behind her, took the bundle of marked bills and pressed the alarm located next to the drawer. She gave him the bundle of marked bills, which often contains $10 and $20 bills. He yelled at her in English that he wanted bigger bills. He repeated that several times. She turned around to access the drawer and then gave him bigger denominations, that is, $50 and $100 bills. The automated cash dispenser was not working. [ 14 ] She may have given him certain bills at her counter and others between the Plexiglas.

However, she is certain that she first gave him the bundle of marked bills over her counter. That bundle was attached together by a paper clip, while the other bills she gave the robber were not attached together. [ 15 ] The robber moved between the two counters, hers and the one next to it, and he continued to yell that he wanted [ translation ] “big bills”.

His right hand was still in his jacket. [ 16 ] She assumed he was armed because every time she told him that she didn’t have any more bills, he pretended he was taking a weapon out of his jacket with his hand. [ 17 ] On that day, the marked banknotes were in a drawer behind her. The bundle had been changed following the last robbery the year before around the same date. It was a very thin bundle and that day, she saw that it contained denominations of $10 and $20.

The bill numbers are kept in a book for that purpose. [ 18 ] She described the man who attacked her as follows: • He is approximately 1.75 m tall. • He wore a black toque very low over his eyes, a black mask, and a black winter jacket. • He is a white man – as she saw his hands, the only part of him that was exposed. According to her, they were the hands of someone who is no longer young. [ 19 ] According to the witness, an amount of $4,000 or $5,000 was stolen. The supervisor usually balances the amounts at the end of the day. [ 20 ] When the robber left the premises, Ms. Sougratti was in shock.

The incident lasted about three minutes. [ 21 ] The branch manager, who was in his office, saw the man heading towards the exit. He called out to him, and at that moment, the man made a gesture with his hand in his jacket seeming to imply that he had a weapon. The manager chased after him. Francesco Figliozzi [ 22 ] He has been a teller at the Caisse Desjardins for almost two years. [ 23 ] On the afternoon of December 15, 2020, he saw a man arrive at the Caisse by the entrance located on Mozart Street, while he was serving a client at his counter.

According to the witness, the man appeared determined. [ 24 ] The man arrived at the main door, which was closed, and knocked on it. The witness pressed the audible warning device so that the individual could enter. Mr. Figliozzi was busy, so the man went to see his colleague, Ms. Sougratti. [ 25 ] He spoke to her in a loud, aggressive voice and asked her to give him everything she had. He repeated that several times. He called her a [ translation ] “bitch” and threatened her. He hit the Plexiglas screen and scared her. [ 26 ] First, she gave him the marked bills.

It was a thin bundle of bills held together by a paper clip. The bundle was prepared in advance and kept in the drawer near the cash dispenser. It was $250. Although they were marked bills, they looked completely normal. [ 27 ] The individual was insistent. She gave him a bundle of $20 bills and another bundle of various denominations. She gave him three bundles in total.

[ 28 ] The man turned toward the witness and made a gesture inside his pocket as if he was hiding a firearm. [ 29 ] Manager Guerrieri heard the yelling and came out of his office. He quickly understood the situation and tried to confront the individual, who then made a gesture towards him with the hand in his pocket. The individual fled via Saint-Laurent Blvd., and the manager chased after him. [ 30 ] Mr.

Figliozzi described the individual as follows: • He wore a black jacket and a black mask. • He also wore a black toque and a hood trimmed with grey fur. • He is approximately 1.70 m and weighs about 75 kg. • According to the witness, he is a tanned white man with big hands, and he had a Band-Aid on one hand. [ 31 ] On December 16, 2020, Mr. Figliozzi proceeded to count the December 15 cash balance. There was $5,900 missing. In his view, that was the amount that had been stolen that day. [5] After the hold-up, the drawer where the cash was kept was empty.

Giuseppe Guerrieri [ 32 ] He is the manager and head of the branch and was so at the time of the events. [ 33 ] On the afternoon of December 15, 2020, while he was in his office, he heard the sound of a loud voice. He opened the door and saw an individual. He heard in French, “$50, $100”. Twice, the man gestured to him with his hand, which he put in his pocket as if to show him a firearm. The man fled via the Saint-Laurent Boulevard exit. The witness followed him. [ 34 ] The man crossed Saint-Laurent Boulevard at a fast pace and got into a taxi that was on Mozart Street.

The manager photographed the taxi and its licence plate three times. He sent the photos to the police. [6] [ 35 ] A first group of uniformed police officers arrived 10 minutes later. Other police officers arrived in the half-hour that followed. [ 36 ] The manager had given his employees the following instructions in the event of a hold-up: • Comply with the robber’s demands. • Give him the bundle of marked bills (the robbery bundle). [ 37 ] The witness explained to the Court that the marked bills have serial numbers that are recorded in a logbook.

The robbery bundle is composed, in particular, of $10 and $20 bills, but also contains other denominations. It is kept in the top drawer of a black cabinet in the branch. The robbery bundle and its serial numbers are changed only after an event such as the one that took place on December 15. Otherwise, it remains the same. [ 38 ] Two robbery bundles of $250 each are kept in two different places in the branch. One is kept at the front of the Caisse, and the other is kept in the back, in the main vault.

The marked bills are similar to other bills except that their serial numbers have been recorded. [ 39 ] The list of marked bills is kept at the counter of the MSA (member services agent). The witness gave Detective Sergeant Del Corpo the list of marked bills. [7] [ 40 ] When examined on document P-5, titled [ translation ] “ATM cash balance details”, the witness answered that the cash was counted every day and that the amounts had to balance such that the difference for the day had to equal zero. There was $5,900 missing.

An amount of $250 was noted on the document, under the heading [ translation ] “marked bills”. That refers to the robbery bundle that was not stolen. Usually, the amount on the document is $500, the total of the two robbery bundles. [ 41 ] According to him, an amount of $5,900 was stolen. [ 42 ] On cross-examination, the witness said that he usually keeps an additional amount of money in the drawer in case the dispenser is not working. According to him, the dispenser was working on December 15, 2020. Jean-François Evens Mede [ 43 ] He is a taxi driver, and he was working on the afternoon of December 15, 2020.

A man hailed him on the corner of Saint- Laurent Boulevard and Beaubien Street. Mr. Mede picked him up. [ 44 ] The man greeted him and said that he had to go to two different destinations, to see his wife at a place located at the corner of Mozart Street and Saint-Laurent Boulevard and then to the corner of Hutchison and Jean-Talon Streets. [ 45 ] Once they reached Mozart Street, the individual told him to turn left and stop there. The witness told the Court that at that moment, he stopped on Mozart between Saint-Laurent Boulevard and Clark Street (15 m from Clark). There is an SAQ on Mozart.

The driver dropped the individual off on Mozart, on the same side as the SAQ. The man gave him $20 to wait for him, saying he would be two or three minutes. He got out of the taxi and headed west.

[ 46 ] After some time, the individual returned without the taxi driver noticing. However, he heard a door open and someone getting in. Then, the individual said to him several times in French, [ translation ] “quickly, quickly” while looking behind him. [ 47 ] According to the witness, the individual was panicking. He was continuously shouting, [ translation ] “quickly, quickly”, [ translation ] “go quickly, go quickly”, while looking back. [ 48 ] At one point, the taxi was stuck at a red light in a line-up on Clark Street. He asked the individual where he should go.

The individual told him to [ translation ] “go fast, go fast”. The light turned green, and the taxi driver headed west on Mozart Street. During the entire journey, the individual repeated [ translation ] “quickly, quickly”, while looking behind him. [ 49 ] The taxi driver told the Court that he no longer knew where he was going and that he was driving blindly. The man then told him to turn right. It was a street that led directly to Jean-Talon Street. The driver took that street, and the man repeated to go fast. Once on Jean-Talon, the individual told him to turn left.

The man got out of the taxi at a red light at the corner of Jean-Talon and Parc Avenue. [ 50 ] Before getting out of the taxi, the man told him [ translation ] “I’m going to give you $100 to say that you never saw me”. The driver agreed, took the money, and the individual got out of his taxi. He headed west on the sidewalk on Jean-Talon. The driver did not notice what the fare was given the amount he received. [ 51 ] The light turned green. Suddenly, the driver wondered if he had harmed his wife because that was the main purpose of one of his destinations.

He called 9-1-1. [ 52 ] The witness described his client as follows: • He was a white man, about 1.69 m tall (the same height as the witness). • He weighed about 60 kg or 150 pounds. • He wore blue jeans and a black hooded jacket.

In fact, he had his hood on for part of the taxi ride. • The man spoke Quebecois French, more or less. [ 53 ] The witness said he would not recognize him if he saw him in the street and was unable to identify him to the Court. [ 54 ] The driver recognized his taxi, a 2020 white Camry hybrid, and its licence plate (FRD 8349), in the bundle of photos. [8] José Daniel Abreu Medina [ 55 ] He is a security guard. On December 15, 2020, he was working for Garda at the BMO branch located at 520 Jean-Talon West.

He explained to the Court that his work consists of preventing theft because that branch has been robbed many times. He protects people and the building. He also directs traffic inside the branch.

He usually walks around both the branch and the ATMs. [ 56 ] When questioned about certain photos taken at that branch, [9] the witness stated the following: • The branch is located at the corner of Jean-Talon West and Querbes. • A narrow glass corridor leads to the main entrance of the branch (photo 6). • The right-side door of the hallway leads to the two ATM machines that are in a separate area of the bank. [ 57 ] On the afternoon of December 15, 2020, he intervened in an incident involving an individual whom he recognized, because he had seen him a few times before in the context of his work, and moreover, he was a known client of the branch. [ 58 ] The individual in question, who entered through the main door, seemed to be in a hurry and wanted to know if there would be a long wait to make a cash deposit.

The witness told him that there would be a long wait because there were many clients. He told the individual that if he wanted to make a deposit, he could use an ATM. [ 59 ] The man was five feet, five or six inches tall and middle-aged. He wore a winter jacket, blue jeans, and a sanitary mask. On cross-examination, he added that the man wore a blue sanitary mask and a toque on his head. [ 60 ] The witness showed the individual how the AMT works. The man inserted a BMO debit card into the machine. Then the witness showed him how to navigate it. He also showed him which button you have to push to make a deposit.

Then the slot of the machine opened to receive the deposit. [ 61 ] The man took a one-inch-thick roll of money out of his pocket. He started to count the money. [ 62 ] At the same time, a client headed towards the main entrance of the bank and waited in line outside the space where the ATMs are located. He kept glancing towards the space where the machines are located, which he could see through the glass. [ 63 ] The individual who was still at the ATM (the second one) was looking at the client.

According to the witness describing the scene, the individual became [ translation ] “erratic”, nervous, preoccupied by the client who was looking at him. He then said to him, “Don’t look at me!” The client replied. The individual was no longer able to concentrate on the transaction.

[ 64 ] Then it escalated. The individual and the client first spoke to each other in English, then in Greek. They were arguing. Although the witness does not speak Greek, he recognized the tone. Then the individual at the ATM said, “Do you know who I am?” The client, who was still outside the branch, about four metres away from the other man, continued to argue. [ 65 ] Then the individual at the ATM took a retractable knife out of his pocket and opened it. The knife was approximately two inches long with a metal handle. [ 66 ] He immediately headed toward the client, armed with the knife.

The witness managed to intercept him with the help of another client on the scene. The man with the knife was furious. [ 67 ] With the help of the second client, the individual managed to calm down and lowered his knife. In so doing, he cut himself on his right thumb and cursed. He put the knife back in his pocket. [ 68 ] He returned to where the ATMs are to finish his transaction and went to the closest machine.

Near the place where he cut himself, he left blood on the ground. [10] There was also a reddish mark on the white counter of one of the ATMs. [11] [ 69 ] When cross-examined on the statement he made to the police, the witness said the following: • He told the police that the suspect did not insert his card into the ATM, because the client had disturbed him right away.

Today, he told the Court that he is not sure if the suspect inserted his card. • According to the witness, the suspect never made his deposit. • He never said in his statement that the suspect had tried again to do his transaction. • When referring to the amount of money that the suspect had on him, he told the police that it was a pile of money, not a roll of money. • The witness remembers very well that the suspect went back to the first ATM. [ 70 ] The witness identified the individual, that is to say the accused, for the Court.

According to the witness, he looks very similar to how he looked on December 15, 2020. [12] Philippe Gagné [ 71 ] He is a banker. On December 15, 2020, he was working as a banker at the BMO branch on Jean-Talon Street West. [ 72 ] He was in his office when, through the window, he noticed agitation near the ATM space. Security guard Daniel Medina, the accused (who is a known client of the bank), and other people were there.

He left his office and asked the clients who were waiting in line outside the branch to come in. [ 73 ] When he saw the accused, the latter was in the ATM space. [ 74 ] He locked the branch and asked Daniel to call the police, who arrived quickly. [ 75 ] He stated that he had seen the accused before. He went to go see one of his tellers, who is of Greek origin and knows the accused. She went to her pigeonhole and found the accused’s name among the bank’s profiles.

Because she is of Greek origin, clients of the same origin usually go to her to do their banking. [ 76 ] The witness described the accused as short, a bit chubby, and of Greek origin. He spoke English with a Greek accent. He identified him in Court and said that he has less hair and that it is whiter and greyer. Detective Sergeant Christina Vlachos [ 77 ] She has been a police officer for 21 years. On December 15, 2020, she assisted Investigators Pompeo and Del Corpo on a crime scene involving a robbery.

She also assisted Officer Salvoni from the forensic identification unit . [ 78 ] She arrived at the BMO branch on Jean-Talon West at about 4:30 p.m.

Then she met Officer Salvoni from the forensic identification unit, who was already there . [ 79 ] Right away, Detective Sergeant Vlachos noticed a reddish substance on the ground at the entrance leading to the ATM space. [13] She saw another reddish substance on one of the ATMs [14] and on the sill of the door leading to the ATM space. [15] She asked Officer Salvoni to take samples from the substances for the purpose of expert assessment. [ 80 ] Sergeant Dean from neighbourhood police station 33 (PDQ 33) (Parc Extension), received information that a suspect had been identified by a witness to the incident that took place at the BMO.

Sergeant Dean knew that individual because he had dealt with him in the past. [ 81 ] Detective Sergeant Vlachos was then informed of the suspect’s name, his date of birth, and an address he allegedly had on Querbes Avenue. She also had access to photos in which he could be seen. Being of Greek origin herself, the police officer concluded that the suspect was Greek as well.

[ 82 ] At approximately 5:15 p.m., she went to 7100 Querbes Avenue while waiting for a search warrant for the suspect’s apartment. It was dark. The address was not very far from the BMO branch. A few patrol cars were on site. The two police officers who had been at the BMO were also present. [ 83 ] According to the initial information received, the suspect was in Apartment 2. At 6:00 p.m., the information was rather that the accused was in Apartment 1 and injecting himself with heroin.

The police officer concluded as of that moment that this information was concerning. [ 84 ] Sergeant Dean accompanied her and was in charge of the crime scene. He assigned certain tasks to her. [ 85 ] Officer Milano knocked on the door of Apartment 2, which was not locked and opened on its own. There was no light inside the apartment, which appeared vacant. The officer used his flashlight.

There was an electric wire on the floor of Apartment 2 that seemed to go to Apartment 1, the apartment next door. [ 86 ] The police officer knocked on the door of Apartment 1 and noticed reddish substances on the door, which was not the case for Apartment 2. [16] [ 87 ] There was a hole above the doorknob where you could see the closing or locking mechanism of Apartment 1. [17] [ 88 ] She knocked on the door and asked in English and in Greek if everything was ok, but got no response. Officer Asselin bent down, looked through the hole above the doorknob and said, “Nick I see you.

Come to the door!” A man came out of the apartment. It was the man who was in the photograph that the police officer had examined. His index finger was bleeding. She spoke to him in English. [ 89 ] She identified the accused to the Court and added that he seemed to be in better health than he was on December 15, 2020. [ 90 ] Officer Milano conducted a frisk search of the accused. He did not appear to need an ambulance. He was wearing a T-shirt and dark pants with no shoes. The officer placed him under arrest, in English, for robbery at the Caisse Desjardins. He was moving his head.

His eyes were glassy; he seemed to be confused and not feeling well. He was taken to the patrol car. [ 91 ] The police officer thinks that he was then taken to the centre opérationnel (C.O.) est (on Langelier). [ 92 ] At about 8:00 p.m., the police officer noted that the accused was not in a condition to speak to a lawyer. [ 93 ] Once they arrived at the C.O., Detective Sergeant Vlachos wanted to check the accused’s personal belongings.

She had received information that marked banknotes had been stolen from the Caisse Desjardins. $353 was found in Apartment 1. [ 94 ] Accompanied by Officer Simard, she took the envelope that was assigned to the accused. On the envelope was the accused’s name, his date of birth, and certain personal information. She thinks she broke the seal of the envelope. [ 95 ] As part of the search for the marked bills, Officer Vlachos photocopied each of the bills making up the $353. [18] She identified three $10 bills that were marked bills appearing on the list of marked bills provided by Mr.

Guerrieri to Detective Sergeant Del Corpo. [19] [ 96 ] She went back to see the accused to make sure he contacted a lawyer before being interrogated by the police. She noted that he was not in a condition to undergo an interrogation, as he did not seem well enough. He was returned to his cell. [ 97 ] When examined on the document titled [ translation ] “Processing of offender”, [20] the officer recognized it and said that she had used it.

After consulting it, she said that she did indeed break the seal of the envelope and obtained a new one, which is on the first page of the document. [ 98 ] During cross-examination, Detective Sergeant Vlachos stated: • That the apartment on Querbes Avenue was not under surveillance, but that the police were present. • They first received information about Apartment 2, and then they received information from an anonymous source that the accused was injecting himself with heroin inside Apartment 1. Officer Isabelle Robinette [ 99 ] She has been a police officer for two and a half years.

In December 2020, she was a patroller at neighbourhood police station 31 (PDQ 31 Villeray). [ 100 ] On December 15, 2020, at about 2:20 p.m., the police received a call about an armed man inside a BMO branch. The call came from a security guard, who said that the man in question had been in an altercation with another man. The armed man appeared to be about 40 to 50 years old; he was short, with long white and grey hair, and wore a black mask.

According to the information received, he was probably involved in an armed robbery that took place in the PDQ 35 sector. [ 101 ] Once they arrived at the BMO at 2:24 p.m., the police officer, accompanied by her partner, Officer Asselin, met with the security guard, who told her that a set of keys covered in blood had been found on the ground and that it was apparently the suspect’s blood. The police officer also saw a reddish substance on the ground. [ 102 ] A perimeter was erected around the crime scene. Investigators were called in as backup.

[ 103 ] A bank employee gave the police officer certain information concerning the suspect’s identity. [21] The information was immediately broadcast on the police radio. She received other information during the investigation. They left the bank at 5:03 p.m. [ 104 ] Officers Robinette and Asselin went to 7100 Querbes Avenue. They stationed themselves in front of that address, while another vehicle went to the back. It was 5:25 p.m. [ 105 ] Officer Robinette explained that the trip between the BMO and 7100 Querbes Avenue takes five minutes.

However, she did not leave the BMO immediately to go to the address on Querbes, because she first had a discussion with the investigators. [ 106 ] While looking for Apartment 1, the police officers walked around the building. They ended up in the basement of the building. At approximately 5:50 p.m., Officer Robinette put his ear against the door of Apartment 1, checking for any noise. He then heard the sound of footsteps and of something being moved or put down.

She told Sergeants Miletto and Vlachos to come join her. [ 107 ] Officer Vlachos spoke in Greek and then in English to whoever was behind the door so that the person would come out, but she was unsuccessful. [ 108 ] Officer Robinette noticed that there was a hole in the door. It was dark such that it was not possible to see inside the apartment. Then Officer Asselin put his eye up to the hole and used his flashlight to see inside. He wanted to make sure that nobody was hurt. He saw someone and said, “Hey Nick …”. [ 109 ] The man came out of the apartment onto the landing. He was barefoot.

They were five police officers in the small space. Detective Sergeant Vlachos placed the individual under arrest. He seemed agitated and did not appear to understand what was happening. At about 6:04 p.m., Officers Robinette and Asselin handcuffed him. [ 110 ] Officer Robinette noted that the individual had a cut on his right thumb, and there was also dried blood on it. Officer Miletto asked the man if he wanted to bring any personal belongings with him. The man asked for his wallet, $300, shoes, and medication. Officers Miletto and Asselin entered the apartment and came back out with the items.

The suspect put his shoes on. He was brought to the patrol car and searched. Officer Asselin kept the other items. [ 111 ] Officer Robinette was examined on the document titled [ translation] “ Processing of offender” and stated the following: [22] • page 2, 6:50 p.m.: the personal belongings were listed and placed in an envelope, which, in turn, was placed in a drawer. • $353. The officer does not know who counted the money although she witnessed the counting. She was at the computer and took notes. That is why her name appears on the document.

On cross-examination, she answered that the money came from the suspect’s wallet and that it was Officer Asselin and another individual who works at the C.O. who counted it. • When the personal items of a suspect are placed in an envelope, that envelope is sealed. To access the contents, the seal must be broken. • The suspect’s signature does not appear because of the COVID situation. Before COVID, the offender signed the electronic register. • page 2, 6:56:34 p.m.: [ translation ] “offender not in a condition to speak to a lawyer. Intox. Drugs”.

Officer Robinette explained that when they were handcuffing him, the accused was not able to stand up. His speech was slurred. He had difficulty going up the stairs, and Officer Miletto had to help the patrollers so that the accused could get up the stairs. At the centre opérationnel, the accused had difficulty walking and standing up. That is why he did not call a lawyer that day. According to her, he was intoxicated by drugs. [ 112 ] Officer Robinette’s involvement in this file ended when the accused was placed in a cell. Detective Sergeant Gilles Mailhot [ 113 ] He has been a police officer since 1998.

On December 15, 2020, he was working in the major crime squad. That day, he had been given the task of conducting the search of 7100 Querbes Avenue. [ 114 ] The events were summarized for him. At about 8:00 p.m., Detective Sergeant Lambert, the affiant in this case, gave him confirmation that the search telewarrant had been authorized. [ 115 ] Detective Sergeant Mailhot arrived at the address at about 8:45 p.m. Two police officers in uniform were stationed in front of the door.

Officer Mailhot was with her colleague Officer Sirois, Officer Salvoni from the forensic identification unit, and two other investigators. [ 116 ] When Officer Mailhot entered Apartment 1, he had the search telewarrant in his possession. He did not perform any actions with respect to Apartment 2. He knew, however, that the apartment was empty. Detective Sergeant Lambert accompanied him and gave him certain information. [ 117 ] The officers focussed on Apartment 1.

They were looking for marked bills, notes, a knife, a baseball cap, a winter jacket, and shoes. [ 118 ] When examined on the photos taken in Apartment 1 by Officer Salvoni, the witness responded as follows: • The first object seized was a Point Zero winter jacket. It had a crest at the top of one of sleeves – a detail that had been mentioned during the investigation. [23]

• The second object seized was a black baseball cap that was hanging on the wall. [24] • A second black baseball cap was seized from the bed.

It was an Under Armour baseball cap. [25] • A pair of black gloves was seized. [26] • Items 5 (Gerber retractable knife), 6 (De Walt retractable knife), and 7 (black mask) were found on the table near the kitchen, It should be noted that item 5, the Gerber retractable knife, had reddish marks on the metal handle. • Item 8, a Walther compressed air pistol, was found on top of the refrigerator. [27] • Item 9, a pair of black Adidas shoes with a white pattern, was seized. [28] • The officers also found three cards on the table: a Royal Bank card in the accused’s name, a Costco card in the accused’s name, and a CIBC debit card.

These cards were not seized, but they were photographed. [29] • Many syringes were found on the premises. [ 119 ] Once the search was completed, the officers locked the apartment door. They took the seized objects with them and placed them in storage in a locker in the evidence room. [ 120 ] The accused did not present a defence and did not testify. Positions of the parties The Crown [ 121 ] For the Crown, the first count, that is, the count of robbery at the Caisse populaire Canadienne Italienne is the principal and most important one.

During its arguments on this count, the Crown established a connection among all the evidence adduced and reconstructed, in accordance with its theory of the case, the route taken by the accused to go to and leave the Caisse, to go to Querbes Avenue, and after a certain period of time, to go to the BMO.

The Crown argues that although the burden of proof is high, it has successfully demonstrated to the Court that the accused is the perpetrator of the robbery at the Caisse. [ 122 ] As for the count of assault causing bodily harm against a client of the bank, the evidence shows that the blood found at the BMO is not that of the client who was the target of the accused’s attack and that it was the accused who hurt himself while closing the knife. The Crown argues that, in view of all the evidence, the Court can find the accused guilty of the included offence of assault.

The defence [ 123 ] The defence argues that the Crown has not established the accused’s guilt on the count of robbery. It argues that the circumstantial evidence is tendentious. Among other things, the Crown had to prove the identification of the accused on this count beyond a reasonable doubt, which it did not do. [ 124 ] The evidence reveals that the accused was present at the BMO. Should it necessarily be concluded from this that he was the one who committed the robbery at the Caisse? For the defence, it should not.

First, the witnesses were unable to provide a positive identification of the person who committed the robbery. Among other things, the Crown did not establish that the individual who left 7100 Querbes Avenue at about 2:20 p.m. (25 minutes after an individual arrived at 7100) is the accused. Indeed, what can be seen on the video excerpt from the surveillance cameras is a very small figure exiting the address.

It cannot be concluded from the evidence that the individual who entered that address is the one who exited it at 2:20 p.m. [ 125 ] In addition, it is not admitted that Apartment 1 at 7100 Querbes Avenue is the accused’s domicile, as the element of control was not established, even though the accused was found on the premises. The evidence shows that there is no lock on the door to Apartment 1, and therefore, the apartment is accessible to everyone. The evidence does not establish who lives at this address. [ 126 ] In addition, the $353 was not found on the accused.

The evidence does not reveal where the officer found this money in the apartment of an individual whose identity is unknown. It should be noted that the objects that were found in the apartment further to the execution of a search warrant are connected to that apartment, but not to the accused. The applicable law [ 127 ] When assessing the evidence, the Court must keep in mind that the burden of proof falls on the Crown and that the accused benefits from the presumption of innocence. The accused need not prove his innocence.

The Crown must prove all the essential elements of the offence beyond a reasonable doubt. [ 128 ] Reasonable doubt “is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’”. [30]

Evidence of identification [ 129 ] As recognized in the case law, the Court must exercise caution against the inherent dangers of eyewitness identification, because it is indeed fraught with risk. [ 130 ] In this regard, our Court of Appeal stated the following in Bui : [31] [ translation ] [12] It is recognized in the case law that the eyewitness identification of a suspect has inherent risks.

It can lead to miscarriages of justice as a result of the good faith of the witness and the frailty of human memory . [32] [ 131 ] In regard to the assessment of such evidence, the Court noted: [ translation ] [13] The probative value of identification evidence must not be measured solely on the basis of the credibility of the witness, but also on the reliability of the evidence. The judge must therefore bear in mind all the circumstances that led to the identification as well as independent evidence confirming the eyewitness identification .

The probative value of the evidence must be assessed on the basis of the entire identification process, which culminates with an identification at trial. [33] [Emphasis added.] [14] In Mezzo v. The Queen , Wilson, J. draws up a non-exhaustive list of the factors to be taken into account by the trier of fact in the determination of the objective reliability of identification evidence: I do not mean to suggest that the trial judge should in every case be held to a rigid tabulation of the factors listed in Turnbull . A mechanical test would not reflect the infinite particularity of possible fact situations.

The Turnbull caution does, however, identify a number of factors which can clearly affect the quality of eyewitness evidence: length of observation, distance, light, obstructions to view, recognition, time between original observation and subsequent description to the police and discrepancies between that description and the accused's appearance . No doubt there are many more.

The consistency in the witness' descriptions (relevant in this case), his or her degree of attention and awareness at the time of the crime, and the witness' reaction at subsequent encounters with the accused (also relevant in this case) are some that come readily to mind. [34] [ 132 ] The Court cannot examine the evidence in a vacuum. In Bouzaiene-Kais , [35] the Court of Appeal noted: [ translation ] [5] That could have been the case if the Crown’s sole evidence consisted of the victim’s visual identification evidence.

In this case, however, the Crown’s evidence also included the fact that the appellant’s DNA was found on the artisanal pipe seized on the property, in the immediate vicinity of the victim’s residence, near the fresh footprints along the side of the building that is not visible from the street, and what is more, under a window. In the circumstances, the judge could not, nor can the Court today, examine these two pieces of evidence as watertight compartments, but must do so comprehensively, one in relation to the other, and, it should be noted in light of all the circumstances .

It is in fact an error of law to consider the evidence in a vacuum to determine whether each piece of evidence meets the criterion of proof beyond a reasonable doubt: “the evidence must be looked at as a whole”. [Emphasis added.] [ 133 ] Citing Coonishish , [36] the Court went on to state: [ translation ] [41] The objective reliability of identification evidence generally emerges from a meticulous and rigorous examination of the circumstances in which the observations and the identification were initially made by the eyewitness and of the independent evidence that confirms or supports the eyewitness identification . [Emphasis added.] [ 134 ] And, citing Louis : [37]

[ translation ] [7] More recently, the Court noted the following principle in Louis c.

R . [ translation ] [27] Although in principle, a significant difference in the identification of physical characteristics will lead to the conclusion that the identification is insufficient [citations omitted], that is only the case in the absence of other incriminating evidence [citations omitted]. [Emphasis added.] [ 135 ] The Court concluded as follows on the examination of the evidence: [ translation ] [8] In this case, the Court must therefore examine [ translation ] “the evidence as a whole rather than as separate elements” and consider, through the lens of judicial experience, whether judicial fact-finding precludes the conviction . [38] The circumstantial evidence [ 136 ] In cases where the evidence of one or several elements of an offence depends exclusively or in part on circumstantial evidence, we must avoid drawing inferences of guilt too quickly.

That is what the Supreme Court teaches us in the leading case on the issue, Villaroman . [39] [30] … Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. … [35] … Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.

The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [ 137 ] A certain gap in the evidence may result in inferences other than guilt. As the Court of Appeal reiterated in Bouzaiene–Kais : [40] [ translation ] [31] With respect to circumstantial evidence, a certain gap in the evidence may result in inferences other than guilt.

According to the Supreme Court, those inferences must however “be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” and must not be based on conjecture. Indeed, a possible inference constitutes a mere theoretical possibility, or speculation, and cannot therefore raise a reasonable doubt.

The appellant’s argument, raised for the first time during the appeal hearing, that the pipe in question could have been thrown onto the property surrounding the victim’s residence, under a window, by a third person on the street, is precisely a matter of pure conjecture. [32] The line between a plausible theory that is incompatible with guilt, and conjecture or speculation, is not always easy to draw. Accordingly, it is necessary to comply with the important principle that it is “fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation.

The trier of fact’s assessment can be set aside only where it is unreasonable”. [41] Analysis

[ 138 ] As the parties aptly pointed out, the Court must examine numerous pieces of evidence – evidence that is in

part circumstantial – to determine whether the Crown has established the accused’s guilt beyond a reasonable doubt on the counts alleged against him. [ 139 ] The chronology of events is quite important in this case. The video excerpts from the surveillance cameras play a central role in the evidence adduced by the Crown, and, in its view, allow us to follow the route taken by the perpetrator of the robbery at the Caisse Desjardins. That route is also relevant in terms of monitoring the movement of the marked bills obtained during the robbery.

The video excerpts from the surveillance cameras December 15, 2020 1:47:23 p.m. : (surveillance camera located at 7010 Saint-Laurent Boulevard (SAQ). The Court sees a white taxi heading north on Saint-Laurent Boulevard and then turning west on Mozart Street. In view of the testimony of the taxi driver and of Mr. Guerrieri, who photographed the licence plate and the taxi, the Court finds that it is the white Camry taxi that Mr.

Mede was driving that day. 1:47:58 p.m. : The Court sees a man of average height wearing a black jacket with a fur collar, a black baseball cap, and black sneakers with distinctive white stripes. The man is travelling on Mozart Street (according to the surveillance camera, he is walking east on the north side of the street, towards Saint-Laurent Boulevard). 1:48:15 p.m. : A similar man whose fur collar can be seen is crossing Saint-Laurent Boulevard towards the Caisse Desjardins located at 6995 Saint- Laurent Boulevard. …… The Caisse’s camera filmed the same individual entering. He is in the lobby.

The Court notes that in this excerpt, a white logo can be seen on the black baseball cap of the individual, who is still wearing the same black shoes with the distinctive white stripes. The individual passes through the two glass doors and enters the Caisse. It is the same individual. However, he is wearing a black sanitary mask characterized by large cut-outs on each side of his face. He goes up to a counter protected by Plexiglas. Ms. Sougratti is at the counter in front of the individual.

The individual opens his jacket, points a finger at the teller, taps his finger against the counter more than once while talking to her, and even moves the Plexiglas. The teller movers to the adjacent counter, which is not protected by Plexiglas. The individual is wearing a Band-Aid on the other hand – the one with which he seems to be trying to conceal his face. He puts his hand in his jacket and then withdraws it. The other teller, Mr. Figliozzi, comes up to the counter. Next, the Court sees Ms. Sougratti give the individual a small bundle of cash and then other bills. The individual runs out of the Caisse.

That is when Mr. Guerrieri starts chasing him. 1:50 p.m. : The same individual runs across Saint-Laurent Boulevard and gets into the taxi that is waiting for him. Mr. Guerrieri photographs the licence plate and the taxi waiting for the individual, who gets in. During his testimony, the driver identified his taxi on the photos presented to him. He said, among other things, that the individual who told him to wait got into his taxi without him really noticing. He said that the man was panicking, saying [ translation ] “quickly, quickly”, while constantly looking behind him.

He was wearing a hood for part of the trip.

1:52:35 p.m. : (surveillance camera located at 390 Jean-Talon Street West (Shell). According to the testimony of the taxi driver, the individual got out at the corner of Jean-Talon Street and Parc Avenue, while the vehicle was stopped at a red light. The individual gave the driver $100 so that he would not reveal that he had seen him. On the video excerpt, the Court sees a taxi heading west on Jean-Talon Street in the centre lane. It also sees a dark silhouette walking on the sidewalk on Jean-Talon Street (according to the video, on the north side, heading west).

Although the Court cannot identify the individual, this excerpt corroborates the testimony of the taxi driver regarding the location. 1:54:22 p.m. : (camera located at 449 Jean-Talon Street West (Western Union Money Mart). The Court sees the same individual as on the preceding videos walking westward on the sidewalk on the north side of Jean-Talon Street. The Court notes the distinctive shoes, black baseball cap, and black jacket with the fur collar. 1:54:49 p.m. : (camera located at 478 Jean-Talon Street West (Proxim)). The Court sees the same individual on the sidewalk on the south-east side of Querbes Avenue.

He crosses Querbes Avenue going south, then heads west, and enters a building on the same street. The investigation revealed that this building is located at 7100 Querbes Avenue, where the search would take place. The Court concludes that up until this moment, it is the same individual who committed the robbery at the Caisse Desjardins, who took the taxi driven by Mr.

Mede, and who entered 7100 Querbes Avenue. 2:20:10 p.m. : An individual dressed in a dark colour, whom the Court cannot identify because of the distance, leaves the building located at 7100 Querbes Avenue and walks down that street (according to the video : northbound on the west side of the street towards Jean-Talon Street). It should be noted that the BMO where the accused was recognized is located at 520 Jean-Talon West, not far from 7100 Querbes Avenue. Evidence at the BMO [ 140 ] At about 2:22, the accused went to the BMO where he is a regular customer. The security guard, Mr.

Medina, who recognized him, offered to help him make a deposit at the ATM. The two ATMs are located in a space surrounded by glass panels, adjacent to the bank. [ 141 ] Mr. Medina testified that he helped the accused make a deposit at the ATM. According to his testimony, he is not sure whether or not the accused inserted his card into the machine. However, the witness said that the accused took a one-and-a-half-inch thick pile or a roll of cash out of his jacket.

Although the witness was not specific on this point, the Court concludes from his testimony that the accused had a large amount of cash on him and that he tried to deposit it. [ 142 ] Photos taken in the ATM space at about 2:22 and 2:23 p.m. show the accused, dressed in a black jacket and black baseball cap (the Court sees a white mark on the cap) and wearing (under his chin) a black sanitary mask that looks like the one worn by the individual who committed the robbery at the Caisse Desjardins. The Court draws this conclusion from the fact that the mask has large cut-outs on the sides of the face. [ 143 ] Mr.

Medina and Mr. Gagné recognized and identified the accused. [ 144 ] It should be noted that only a few minutes elapsed between the time the individual exited 7100 Querbes Avenue and the time we see the accused at the BMO bank machine. [ 145 ] On that day, there was a long line of clients waiting to use the bank’s services. As Mr. Medina recounted, one of the clients was watching the accused, who became annoyed and said, “Do you know who I am?” The accused headed towards the client and took a knife with a retractable metal blade out of his pocket.

He hurt himself trying to close the knife after being subdued by the security guard and another client. Photos taken on the scene show reddish stains at the entrance to the ATM space and on one of the ATMs, which corroborates Mr. Medina’s testimony concerning the fact that the accused hurt himself.

[ 146 ] As a result of the commotion caused by the accused’s actions, at about 2:30 p.m., Mr. Gagné came out of his office and closed the branch. He crossed paths with the accused in the corridor leading to the bank, and with the help of one of the Greek tellers, he identified the accused. The rest of the investigation and the accused’s arrest. [ 147 ] The investigation continued. The major crimes squad obtained the information that the accused lived at 7100 Querbes Avenue. [ 148 ] At approximately 5:45 p.m., Officers Robinette and Asselin arrived at the address.

They entered the building, looking for the accused’s apartment. The evidence reveals that the accused was in Apartment 1, that there were reddish stains that looked liked drops of blood on the door, and that there was a hole above the doorknob. It was in fact through this hole that one of the officers saw the accused and spoke to him saying, “Nick ...”. [ 149 ] Detective Sergeant Vlachos spoke to him, in Greek and in English, while he was still inside the apartment. She had received information that he was injecting himself with heroin. The accused finally opened the door and came out of the apartment.

According to the evidence, he was confused, and his finger was bleeding. He was arrested and read his rights (at about 6:04 p.m.). [ 150 ] He was barefoot and asked one of the officers to bring him $300, his wallet, his shoes, and some pills. The officer entered the apartment and got his belongings. He gave the shoes to the accused and kept the other items, which he brought to the C.O. est, where the accused was also taken. [ 151 ] At about 6:50 p.m., the accused was at the C.O. est. He was too intoxicated to be interrogated. The police officers had in fact noticed his confused state during his arrest.

Officer Robinette put the accused’s belongings, including the money, in a sealed envelope. The search at 7100 Querbes Avenue [ 152 ] At about 8:45 p.m., Detective Sergeant Mailhot conducted a search of Apartment 1.

He was accompanied by Detective Sergeant Lambert, who provided information to him. [ 153 ] During the search, Detective Sergeant Mailhot found the following items, inter alia : • On a hook on a wall, a black jacket with a grey fur collar (photos 65 to 72). [42] The jacket looks very similar to the one worn by the man who committed the robbery at the Caisse Desjardins. • A black Under Armour baseball cap with a logo on the side (photos 78 to 82). The baseball cap looks similar to the one worn by the man who entered the Caisse Desjardins to commit the robbery.

The Court had also noticed a white logo on the side of the baseball cap on the photos of the man entering the Caisse. • A retractable metal Gerber knife with reddish marks on the handle (photos 88 to 92). The knife matches the description provided by Mr. Medina at the time of the BMO incident. In addition, the reddish marks are consistent with the account given by the witness, who explained to the Court that the accused took the knife out of his pocket and then cut himself closing it. Reddish marks were found at the entrance to the ATM space and on one of the machines. • A black sanitary mask.

It looks very similar to one worn by the individual who committed the robbery at the Caisse and to the one worn by the accused at the BMO.

Like those two masks, the one found in Apartment 1 has large cut-outs on the sides (photos 97 to 99). • Black sneakers with distinctive white stripes similar to the sneakers the Court observed on the feet of the individual who committed the robbery at the Caisse Desjardins (photos 109 to 117). • On a table near the accused, three cards: an RBC card in the accused’s name, a Costco card with the accused’s name and face, a CIBC debit card with no name or photo (photos 118, 120 to 126). • Several syringes were found on the same table and on the floor near the table (photos 25 to 28).

The discovery of these syringes is consistent with the accused’s state of intoxication and the information received by Detective Sergeant Vlachos that the individual was injecting himself with heroin. • According to Detective Sergeant Mailhot, the apartment is not a shooting gallery. According to his testimony, he locked the apartment door when he left. Discovery of the marked bills [ 154 ] Detective Sergeant Vlachos was informed that during the robbery, the teller gave the robber marked banknotes. In fact, the officer obtained the list of those marked bills.

She compared the bills using the money that was in the accused’s envelope and the list. Three marked $10 bills that Ms. Sougratti gave the thief were found among the $353 that came from the apartment where the accused was at the time of his arrest. Has the Crown established the identification of the accused

beyond a reasonable doubt? Has the Crown established the essential elements of the offences alleged against the accused beyond a reasonable doubt? [ 155 ] The Court is of the view that the Crown has established beyond a reasonable doubt that the individual who committed the robbery at the Caisse Desjardins is the accused. [ 156 ] It is useful at this stage to address the testimony heard during the Crown’s evidence. All the civil witnesses heard in this case appeared sincere and credible to the Court.

They all gave detailed testimony, to the best of their recollection, and when cross-examined, they answered unequivocally. For each of them, the Court notes that the cross-examination hardly shook their versions of the facts, and when certain differences did appear, they did not tarnish the reliability of the testimony. [ 157 ] The civil witnesses from the Caisse Desjardins, Sougratti and Figliozzi, were not able to identify the individual to the Court and gave an approximate description of the robber.

Their versions are consistent in regard to the individual’s height, the fact that he was white, and that he wore a black jacket. However, they both stated that he was wearing a toque, whereas the video excerpts show that the thief was wearing a black baseball cap. [ 158 ] The taxi driver, like the Caisse employees, said that the individual who got into his taxi was white and that he was wearing a black hooded jacket. The individual’s height corresponds to the description given by the Caisse employees.

Like them, this witness was not able to identify the individual to the Court. [ 159 ] This testimony alone would not have been sufficient to establish the identification of the accused, as it contains certain weaknesses. The value of this eyewitness identification evidence is low and is also contradicted by certain video excerpts.

However, as our Court of Appeal teaches in matters of identification, the Court cannot [ translation ] “examine these pieces of evidence as watertight compartments, but must do so comprehensively, one in relation to the other, and, it should be noted, in light of all the circumstances”. [43] In addition, the Court must [ translation ] “consider, through the lens of judicial experience, whether judicial fact- finding precludes the conviction”. [44] [ 160 ] There are several different pieces of evidence in addition to the evidence given by the eyewitnesses in this case. [ 161 ] It is useful here to address the various arguments raised by the defence. [ 162 ] The defence argues that the Crown has not established that the person who left 7100 at about 2:20 p.m. (25 minutes after arriving on the premises, assuming it is the same individual) is the same person and that it is the accused who was then at the BMO. [ 163 ] The Court is of the view that the person who entered 7100 (1:54:49 p.m.) is the person who committed the robbery at the Caisse.

In addition, approximately three minutes elapsed between the departure of an individual from 7100 and the presence of the accused, who was recognized by witnesses, at the BMO.

According to the evidence as a whole, the Court draws the reasonable inference that it could be the accused who left 7100 at 2:20 p.m. [ 164 ] According to the defence, Apartment 1 of 7100 is not the accused’s apartment, because the Crown did not establish that he has control over that apartment. [ 165 ] The Court noted that the photos taken at Apartment 1 of 7100 clearly show that there is a hole above the doorknob. [ 166 ] However, the Court is of the view that the evidence shows that the accused has a certain control over the apartment. [ 167 ] Several objects connected to the accused were found in the apartment.

Not only are they connected to the accused, but they are also connected to the man who committed the robbery at the Caisse and who was observed in the different video excerpts. [ 168 ] Various elements permit the Court to infer that the accused uses the apartment and has a certain degree of control over it.

He was in the apartment when the police arrested him; several syringes were found on the premises and are consistent with the accused’s level of intoxication (according to Detective Sergeant Mailhot, it is not a shooting gallery); cards in the accused’s name were on the table where some of the syringes were. [ 169 ] In addition, at the time of his arrest, the accused acted as if it was his own apartment when, without further details, he asked the officer to bring him certain items.

The officer therefore brought what the accused asked for, including medication, which, in the Court’s view may be characterized as very personal items. [ 170 ] The defence submits that the $353 was not found on the accused. It is true that the banknotes were not found on him, but rather in the apartment he was using. Also, some of the marked bills were found in that amount.

What should be inferred from the presence of these marked bills in the amount of money the police officer found in the apartment used by the accused? [ 171 ] The Court is of the view that all of the circumstantial evidence, including the presence of marked bills in an amount of money found in the apartment used by the accused, supports the reasonable inference that it was the accused who committed the robbery at the Caisse.

Considering the absence of explanations by the accused in regard to the presence of those bills connecting him to the robbery, the Court may consider that evidence. [ 172 ] In this regard, the following excerpt from the Court of Appeal’s judgment in Bouzaiene-Kais is relevant:

[ translation ] [17] Of course, the Crown always has the burden of proving the offence beyond a reasonable doubt, and the judge did not disregard this, as can be seen from paragraph 3 of her reasons, and an accused need not testify or otherwise adduce evidence is support of his or her defence. The appellant’s decision not to present any evidence in support of an inference other than his guilt could not in any way have been unfavourable to him if the Crown’s evidence had not supported any reasonable inference that his DNA was on the pipe connected to the time and place of committing the crimes.

The situation is different, however, when, like in this case, the Crown’s evidence supports such a conclusion or reasonable inference. In such cases, the Crown does not have the burden of setting aside all other possible scenarios, and the case law confirms that the absence of explanations by an accused concerning the presence of DNA evidence connecting the accused to the crimes may be considered by the judge. For example, the Court of Appeal for British Columbia noted in R. v.

Miller that “if, as here, the Crown’s cries out for an explanation, an appellant must accept the adverse consequences of his decision to remain silent ”. [45] [Emphasis added.] [ 173 ] The Court is of the view that this excerpt from the Court of Appeal’s judgment is applicable in this case. [ 174 ] It is true that the Crown always has the burden of proving the offence beyond a reasonable doubt and that the accused need not testify or present evidence in support of his defence.

Nevertheless, here, the Crown’s evidence, that is, the presence of marked bills from the robbery at the Caisse in the $353 that came from the apartment being used by the accused, in the context of the evidence as a whole, supports the reasonable inference that the accused is the perpetrator of the robbery at the Caisse. As the Court of Appeal stated in that case, [ translation ] “the Crown does not have the burden of setting aside all other possible scenarios”.

In addition, this is also a case where “the Crown’s case cries out for an explanation”. [ 175 ] The Court finds in light of all the evidence, which includes the circumstantial evidence, that the Crown has proved beyond a reasonable doubt that the accused is the perpetrator of the robbery at the Caisse. [ 176 ] The Court also finds that the Crown has proved all the essential elements of the offence of robbery beyond a reasonable doubt.

Indeed, an amount of money was stolen, the accused used threats of violence, inter alia by putting his hand in his jacket pocket and withdrawing it to pretend he was pulling out a firearm, and these threats of violence were used to commit the theft, because the evidence as a whole establishes that they were used during the theft, against the teller to obtain money. [ 177 ] From all the circumstantial evidence, the Court finds that the only reasonable inference is that of the accused’s guilt on the count of robbery.

In the Court’s view, any other inference would be irrational. [ 178 ] What about the offences charged under counts 2 and 3? [ 179 ] These are counts of uttering threats to cause death or bodily harm to a client of the bank and of assault causing bodily harm against the same client. [ 180 ] These offences are based on the evidence of what took place at the BMO. Although Mr. Medina corrected his testimony in regard to certain details, his testimony nevertheless remains credible. As for Mr.

Gagné, the cross-examination did not unsettle his testimony. [ 181 ] The Crown invites the Court to convict the accused of common assault instead of assault causing bodily harm because the client was not injured during the altercation. [ 182 ] The Court is of the view that the actions of the accused, who, with an open knife in his hand, headed aggressively towards a client he did not know, constitutes assault in accordance with the definition set out in s. 265(1)(

b) Cr. C . The evidence as a whole reveals that but for the fact that we was subdued by Mr. Medina and a client, he would surely have been able to effect his purpose. [ 183 ] The Court is also of the view that the remarks made by the accused in anger, “Do you know who I am?” against the client he did not know, followed by the knife attack towards the same client, constitute threats.

From the perspective of a reasonable person, aware of the circumstances, the accused’s remarks, accompanied by a knife attack against a perfect stranger, would be perceived as a threat to want to cause bodily harm to that person for the purpose of intimidating that person or being taken seriously. [ 184 ] The Court finds that the Crown has established beyond a reasonable doubt all of the essential elements of the offences alleged against the accused on count 2 (threats) and the same is true with respect to the offence of common assault (266(

a) Cr. C .) included in count 3. FOR THESE REASONS, THE COURT: CONVICTS THE ACCUSED on counts 1 and 2 as worded. CONVICTS THE ACCUSED of the included offence of common assault (s. 266(

a) Cr. C .).

__________________________________ JOSÉE BÉLANGER J.C.Q. Mtre Philippe Vallières-Roland Director of Criminal and Penal Prosecutions Mtre Charles Montpetit Counsel for the accused Dates of hearing: October 20, 21, 22, and 29, 2021.