R. v. Jordan, 2023 NLSC 55

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Jordan , 2023 NLSC 55 Date : April 14, 2023 Docket : 202201G1225 HIS Majesty The King v. Raymond Jordan Before: Associate Chief Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 27-29, 2023

Summary: The Accused was found guilty on charges of attempted robbery, possession of a weapon for a purpose dangerous to the public peace and unlawfully carrying a concealed weapon. He was acquitted on the charge of disguise with intent. Appearances:

Philippe A. Shink Appearing on behalf of the Crown Jeffrey K. Brace Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. George, (SCC), [1960] S.C.R. 871; R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, A.C.J.: INTRODUCTION [1] Raymond Jordan has been charged with the following four counts described in an Indictment filed on April 21, 2022:

a) Count 1 – attempted robbery from Mary Brown’s Diner on November 6, 2019 contrary to sections 343-344(1)(b) - 463(

a) of theCriminal Code, R.S.C. 1985, c. C-46;

b) Count 2 - having his face masked, coloured or otherwise disguised with intent to commit an indictable offence, contrary to section351(2) of the Criminal Code;

c) Count 3 - unlawfully having in his possession, a weapon or imitation thereof, to wit: a knife, for a purpose dangerous to the publicpeace, contrary to section 88(1)-88(2) of the Criminal Code; and

d) Count 4 - unlawfully carrying a concealed weapon, to wit: a knife, contrary to section 90(1)-90(2) of the Criminal Code. [2] The Crown entered a video showing the events that occurred at Mary Brown’s Diner on the morning of November 6, 2019. That video, as well as a still photograph taken from the video, was entered at trial by consent. Both the Crown and counsel for theAccused agree that there is no issue that the person shown in that video and still photograph attempted to commit a robbery of MaryBrown’s Diner while holding a knife.

The real issue to be decided is whether the Crown has established beyond a reasonable doubt thatMr. Jordan is the person shown in that video. [3] Further, in the event I am satisfied beyond a reasonable doubt that it was Mr. Jordan who was shown in the video, DefenceCounsel submits that the Crown has not established all elements of the offence of having a face masked, coloured, or otherwise disguisedwith intent to commit an indictable offence. evidence Constable Walsh [4] The first witness to testify was the lead investigator, Constable Steven Walsh of the Royal Newfoundland Constabulary(“RNC”).

He provided evidence that the RNC was notified of an attempted armed robbery at Mary Brown’s Diner at about 11:30 a.m.on the morning of November 6, 2019. [5] The RNC attended at the diner and spoke with three civilian witnesses who had been working there at the time. Thesewitnesses did not know the suspect. However, they were able to advise that the suspect left Mary Brown’s Diner on foot. The RNC didnot conduct any K-9 tracking.

Further, Constable Walsh confirmed that the RNC did not obtain any fingerprints or DNA samples as thesuspect was wearing gloves. [6] Shortly after the incident, the RNC obtained video footage from the manager and owner of the restaurant. When the videowas taken back to RNC Headquarters, Constable Walsh sent a still photograph taken from the video footage to RNC members todetermine whether anyone was able to identify the suspect.

The following morning, RNC Constable Edmunds sent an email toConstable Walsh advising that he thought the suspect was Raymond Jordan but he was not 100% sure. [7] Based upon this email, Constable Walsh looked at the CMS mugshot database and compared a mugshot taken of Mr. Jordan

with the individual in the video and noticed similarities between them. He described the similar features as being Mr. Jordan’s height, weight, structural features, jawline and chin hair. [ 8 ] Constable Colin Shaw, whose desk was in close proximity to that of Constable Walsh, then advised Constable Walsh that he positively identified Mr. Jordan from previous encounters with him. [ 9 ] Based upon the identification by Constable Shaw and Constable Walsh’s comparison of the still shot with the mugshot of Mr. Jordan, Constable Walsh indicated that he believed Mr.

Jordan was the suspect in the video. [ 10 ] With respect to the weapons charges, Constable Walsh was of the opinion that the video clearly displayed an attempted robbery and that the person who committed the crime initially concealed a knife and then took it out in an attempt to gain access to the cash register.

He also believed that person had committed the offence of disguise with intent on the basis that he was wearing dark sunglasses and a hat on the date of the incident. [ 11 ] The RNC made no attempt to interview the three civilian witnesses after the date of the incident or have them look at a photo in an effort to identify the person in the video. Rather, the RNC proceeded to arrest Mr. Jordan based upon their internal identification. [ 12 ] The RNC also decided not to attempt to obtain a warrant of Mr.

Jordan’s residence as they had no information indicating any clothing, knife or other items related to the attempted robbery were located at that residence. [ 13 ] Shortly after his arrest, Mr. Jordan made spontaneous utterances denying that he had committed the offences. He also provided Constable Walsh with the name and phone number of a person that he said could provide alibi evidence. Constable Walsh testified that he left a message for that individual but did not get a call back. However, on cross-examination, he acknowledged stating at the preliminary inquiry that this person’s voicemail was full.

As a result, he could not be certain at trial whether or not he had actually left a message for that individual. He was able to say however, that he did not hear anything further from Mr. Jordan or any other person regarding Mr. Jordan’s alibi despite having left his business card with Mr. Jordan.

Constable Shaw [ 14 ] Constable Shaw also testified by video at trial as to his involvement in identifying the suspect in the video. [ 15 ] Constable Shaw recalled that when he saw the video screen shot the day after the attempted robbery, he called out to Constable Walsh and then went to Constable Walsh’s cubicle which is located next to his own. Constable Walsh positively identified the suspect as Mr. Jordan. [ 16 ] Constable Shaw indicated that he made his identification based on the recognizable features in the nose, chin, height and stature even though the camera was eight to 10 feet above Mr. Jordan.

He described Mr. Jordan as being slightly less than average height and considered that was comparable to the person in the video. [ 17 ] He says he was able to conclusively identify Mr. Jordan at that time as he had met him on a couple of occasions in the 18 months prior to November, 2019. Mr. Jordan had been the suspect in another investigation in which Constable Shaw was the lead investigator. During the course of that investigation, Constable Shaw had interviewed Mr. Jordan at his home on Mayor Avenue and had arrested him. [ 18 ] Constable Shaw also recalled dealing with Mr.

Jordan in the course of another investigation but could not be sure of the specifics of that particular investigation. He thought it had either been a breach of probation or breach of recognizance. [ 19 ] Constable Shaw also identified Mr. Jordan as the person in the video through an in-dock identification. [ 20 ] Constable Shaw did acknowledge that, in his 12 years as a police officer, he had encountered thousands of people in the course of his work.

While he would not be able to identify all persons whom he encountered, he said that he prided himself on remembering people. [ 21 ] He did acknowledge that he made no notes of the identification but merely spoke to Constable Walsh within the office. At trial, he testified that he viewed the video at Constable Walsh’s cubicle but acknowledged that he may have stated at the preliminary inquiry that he made the identification based upon a photo. However, he was adamant that he remembered watching the video with Constable Walsh at some point.

Civilian Witnesses [ 22 ] The remaining witnesses to testify at trial were the three civilians who were working at Mary Brown’s Diner at the time of the incident. [ 23 ] The former manager of the restaurant, Karen Clark, was working in the dining

section of the restaurant at the time of the incident. Ms. Clark recalled that the incident happened in the morning, at about 10:00 or 11:00 a.m. She saw a gentleman enter the restaurant and then saw her co-worker, Keisha Stevenson, proceed to the cash register. Ms. Clark said that she saw that the gentleman had a knife with tape around it. She yelled out to her co-workers to call 9-1-1 and told Keisha not to go to the cash register. She kept yelling at the perpetrator to leave the restaurant. [ 24 ] She recalled hearing the perpetrator say “give me the fucking money”.

She said he was screaming at Keisha and whoever was in the back of the store to give him the cash. He was swinging around a knife and hit the counter with it while he was asking for the money. [ 25 ] Ms. Clark indicated that the perpetrator tried to take the cash register but then pushed it over the counter. She described the

individual as wearing a hat, gloves and jeans but she could not recall if he wore a coat. [26] Ms. Clark said she was down the hallway near the dining area approximately 20-25 feet away from the cash register, and wasable to observe the individual. She identified Mr. Jordan as the suspect in the video while he was sitting in the prisoner’s dock at trial. [27] Ms. Clark acknowledged that, in the statement she provided to the police, she described the suspect as having grey hair.

Sheexplained that she made that statement as she could see scrubby grey hair on his beard as opposed to the hair on his head. [28] While Ms. Clark claimed to have a good recollection of the events, she testified that the incident occurred in November of2022. Even on further questioning, she was not shaken on the year until it was put to her in cross-examination that the incident actuallyoccurred in November of 2019. [29] On cross-examination, Ms. Clark acknowledged that her memory of the events would have been better at the time of theincident than it was three and one half years later.

At the end of her testimony, when questioned on the level of certainty of heridentification, she stated that it was “fair to say” that she believed that Mr. Jordan was the person who committed the attempted robbery. [30] A second employee of Mary Brown’s Diner testified. Keisha Stevenson was the employee shown on the video approaching thecash register shortly after the perpetrator entered the main doors. She testified that she had been getting ready to go on a break and wasprepping food at a counter behind, and to the right of, the cash register in front of the main entrance.

She said that, from this location,she was able to see the perpetrator immediately after he entered the front doors as she can watch people enter as she is working at thislocation. When she spotted the individual a split second after he came in the door, she proceeded to the cash register and asked himwhether he wished to dine in or take out. She said he then pulled a knife. [31] Ms. Stevenson acknowledged that, once the perpetrator pulled the knife, her focus was mostly on the knife.

However, she wasonly three feet away and she said she was able to keep an eye on the individual’s actions as well. [32] She described the perpetrator as wearing sunglasses, a green baseball hat, splash pants and a pull-over sweater. Because hewas wearing sunglasses, she could only fully see his nose, chin and lips but was able to notice scars or indents on his face. She was ableto see both the left and right side of his face. [33] Ms. Stevenson recalled that the perpetrator slammed the knife on the counter when she said that she would not give him cash. He then threw the cash register on the floor. Ms.

Stevenson testified there would have been only $150.00 cash in the register as that isthe amount of float that was put in the register in the morning. [34] She recalled that she backed away from him and two co-workers came to her side and told her not to move. When theindividual left without obtaining anything, two co-workers ran out the back door to see where he was going. [35] When asked to describe the knife, Ms. Stevenson could not indicate what colour it was but that it was five to six inches long.

She said she did not see the knife when the perpetrator first entered and that he had pulled the knife out of his hoodie pocket. [36] The last restaurant employee to testify was Chawki Mannai. Mr. Mannai had been a chef at Mary Brown’s Diner at the time ofthe incident. He thought the incident happened sometime around 1:00 or 2:00 on November 6th, 2019. Mr. Mannai testified that whenthe perpetrator entered the main entrance, Mr. Mannai was inside the kitchen. He said he was closer to Karen Clark at the time, anddescribed the distance from the individual as approximately 10 to 15 feet.

He testified that Keisha was working at the drive-thru. [37] Mr. Mannai said the perpetrator opened the main doors and then took out a knife and went to the cash register. He describedthe knife as black and approximately 15 centimeters in length. It resembled a cutting knife. He said that Ms. Clark advised theemployees to not go near the individual. [38] Mr. Mannai claimed that he was able to identify Mr. Jordan based on having seen him on the bus on prior occasions. He alsoidentified Mr. Jordan as the suspect based on an in dock identification.

However, his description of the attempted robber differedsignificantly from the images seen on the video and still photograph. In particular, he described the attempted robber as wearing a blueor black jacket, and having a hair colour similar to defence counsel (i.e., blonde to light brown). He said that he could not remember theattempted robber’s eye colour but that he had a good look at him and saw his whole face, mouth and eyes.

This is in markedcontradiction to the video footage that shows the individual as having his hair covered by a hat and wearing sunglasses that blocked theview of his eyes. [39] Of course, the video entered at trial is a key piece of evidence in its own right. It captured the entirety of the alleged offencesdescribed by the three civilian witnesses. It shows the perpetrator entering the diner through the main doors, face on to the camera. Heis pacing to the left and right, and heading to the cash register as Ms.

Stevenson approaches from behind the counter. [40] The perpetrator takes out a knife and makes threatening gestures with it, eventually slamming the knife against the counter. While there is no audio, it is evident that the individual is speaking aggressively to Ms. Stevenson while she backs away. Theperpetrator then attempts to remove the cash register but is unable to do so.

He then throws the cash register over the counter and leavesthough the main doors, having been unsuccessful in stealing anything. law and analysis [41] As in all criminal prosecutions, I am mindful that it is the Crown who must prove guilt on all elements of the offences beyond areasonable doubt. In the 1997 Supreme Court of Canada case of R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory J.,described reasonable doubt as not requiring proof to an absolute certainty.

It is not proof beyond any doubt but it must not be animaginary or frivolous doubt. [42] In a subsequent decision of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, at paragraph 242, the court described the

standard as much closer to absolute certainty than to proof on a balance of probabilities. [43] In respect of the offence of attempted robbery,

section 343 of the Criminal Code defines robbery as follows: Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threatsof violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [44] The Crown has referred me to the Supreme Court of Canada decision in R. v. George, (SCC), [1960] S.C.R.871, in which the court confirmed at paragraph 23 that specific intent must be proven in relation to the crime of robbery.

The Crownsubmits that the video evidence, combined with the testimony of the witnesses, proves beyond a reasonable doubt that the person shownin the video had the specific intent to steal and to use threats of violence to the employees of Mary Brown’s Diner through the use of anoffensive weapon, i.e. a knife.

I have no doubt that the elements of that specific intent offence have been proven beyond a reasonabledoubt as they pertain to the individual shown in that video. [45] With respect to the weapons related offences, I am also satisfied beyond a reasonable doubt that the perpetrator shown in thevideo possessed a weapon, i.e. a knife, for a purpose dangerous to the public peace contrary to section 88(1) of the Criminal Code. (Paragraph 22 of George). [46] The evidence also demonstrates the perpetrator carried a concealed weapon, i.e. a knife.

The video clearly shows that the knifewas not visible when the individual entered the restaurant but he later pulled it out and brandished it in front of the cash register.

Thegeneral intent to conceal a weapon is therefore established beyond a reasonable doubt with respect to the person shown in the video. [47] However, I am not satisfied that the Crown has proven beyond a reasonable doubt that the individual in the video had his facedmasked or coloured or otherwise disguised with intent to commit an indictable offence contrary to section 351(2) of the Criminal Code. [48] While it is true that the individual in the video wore a hat covering his hair and dark sunglasses that blocked a view of his eyes,this attempted robbery occurred in the month of November.

There is nothing unusual about an individual wearing a hat at that time ofyear. As well, the attempted robbery occurred late in the morning. Again, there is nothing unusual about an individual wearingsunglasses during the day. I cannot accept the Crown’s suggestion that people routinely take off their sunglasses as soon as they enter arestaurant. [49] Further, the Crown has not provided me with any evidence as to the weather conditions that day.

It is quite possible that thewearing of a hat and sunglasses was reasonable in the circumstances. [50] I am therefore not satisfied that the evidence presented on count 2 under section 351(2) of the Criminal Code is proof beyond areasonable doubt. [51] Having satisfied myself beyond a reasonable doubt that the person in the video committed the offences of attempted robberyand the two weapons related offences, I must then consider the primary issue of whether the Crown has proven beyond a reasonabledoubt that the individual shown in the video is the Accused, Raymond Jordan. [52] The Crown submits that the evidence of all three civilian witnesses and Constable Shaw, together with my consideration of thevideo, will lead me to the conclusion that the Crown has proven beyond a reasonable doubt that it is Mr.

Jordan who was shown in thevideo attempting to rob Mary Brown’s Diner. [53] The Crown refers to the Supreme Court of Canada decision in R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197in support of its position that the video alone enables me to positively identify the Accused as the perpetrator of this crime. In that case,the Crown had introduced into evidence the videotape of a robbery recorded by a store security camera.

While the store clerk who waspresent during the robbery could not positively identify the accused after he had reviewed the videotape in court, the trial judge foundthat she was able to positively identify the accused based upon her comparison of the accused with the person shown in the videotape. [54] In that decision, the Supreme Court of Canada specifically recognized the long recognized frailties of identification evidence. At paragraph 19, the court states as follows: Thus the importance and usefulness of videotapes has been recognized. This is as it should be.

The courts have long recognized thefrailties of identification evidence given by independent, honest and well meaning eyewitnesses. This recognized frailty served toemphasize the essential need to cross-examine eyewitnesses. So many factors come into play with the human identification witness. As aminimum it must be determined whether the witness was physically in a position to see the accused and, if so, whether that witness had

sound vision, good hearing, intelligence and the ability to communicate what was seen and heard. Did the witness have the ability to understand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear or excitement on the ability of the witness to perceive clearly and to later recount the events accurately? Did the witness have a bias or at least a biased perception of the event or the parties involved?

This foreshortened list of the frailties of eyewitness identification may serve as a basis for considering the comparative strengths of videotape evidence. [ 55 ] With respect to the civilian witnesses, I must take into account that all three were making identifications almost three and one half years after the event and they had not previously been asked to make an identification based on a photo array.

Evidence of an identification shortly after the event would have rendered an identification more reliable than an in-dock identification years later. [ 56 ] I also must consider that the Accused was sitting in the prisoner’s dock when the civilian witnesses made the identifications. Even if Mr. Jordan had not been sitting there, the only other individuals in the courtroom were the judge, a court clerk, the two lawyers and a sheriff officer. It would have been readily apparent to the witnesses that Mr. Jordan was the person accused of the crime.

As his counsel put it, there may as well have been bright red arrows pointing down towards his head. [ 57 ] As noted at paragraph 20 of Nikolovski , I must also consider that robbery can be a terrifyingly traumatic event for the victim and witnesses. A witness might earnestly desire their attacker’s conviction and be biased in that direction. I recognize that the traumatic impact of such an event would have been particularly true in respect of Keisha Stevenson who was approximately three feet away from the suspect. Ms.

Stevenson frankly admitted that her focus was on the knife when she saw it and that might have some impact on her ability to accurately perceive and recount all details of the event. [ 58 ] However, while Ms. Stevenson honestly and reliably recounted that she was fearful and focused on the knife, she also was clear that she had a good view of the perpetrator and his features. She could also accurately recount those features at trial. There was some discrepancy in her describing the individual as wearing a green baseball hat but the hat he was wearing in the video was green with “Toronto” on it.

The only discrepancy is that it was toque rather than a baseball hat. That discrepancy is not significant. [ 59 ] Ms. Stevenson was an independent witness who accurately and reliably recounted the events that date. She acknowledged being nervous but gave her evidence with intelligence and a clear ability to communicate what she had seen and heard. She also did not exhibit any hesitancy in recounting what had happened.

Her evidence was also confirmed by the video. [ 60 ] With respect to the other two civilian witnesses, I believe both witnesses are credible but I do not find their evidence to be reliable. [ 61 ] While there were instances in which Ms.

Clark’s evidence demonstrated an ability to independently recount what had happened (eg. her explanation that the reference in her police statement to hair colour was meant to reference facial hair), there were other times when her recollection made me question the reliability of her testimony. [ 62 ] Of particular concern was her certainty that the attempted robbery occurred in late 2022 rather than three years earlier. As noted earlier, at the conclusion of her testimony, the best she could say was that it was “fair to say” that she believed the suspect was the Accused. [ 63 ] With respect to Mr.

Mannai, while he appeared to be independent, honest and well-meaning, his recollection of the events was not reliable. He claimed to remember that he could see the colour of the perpetrator’s hair and his eyes.

The video evidence makes it clear that would have been impossible. [ 64 ] However, in addition to the eye witness identification, I must consider the recognition evidence of Constable Shaw that occurred just the day after the incident. [ 65 ] I recognize that when questioned regarding his evidence at the preliminary inquiry, Constable Shaw could not even recall whether there had been a preliminary inquiry into this matter.

He explained to the Court that he was recovering from a medical issue and had been unable to prepare to testify as he had not been into work for several weeks before the trial. [ 66 ] I also recognize that Constable Shaw was uncertain during his testimony at the preliminary inquiry as to whether or not he had been shown the video by Constable Walsh whereas, during trial, he testified that he saw the video at Constable Walsh’s cubicle the day after the attempted robbery.

When presented with this prior testimony at the preliminary inquiry on cross-examination, Constable Shaw acknowledged he did not have a perfect recollection of the specifics of the encounter with Constable Walsh when making the identification, but he did remember watching the video at some point. [ 67 ] I also acknowledge that Constable Shaw could not recall certain specifics of his prior encounters with Mr. Jordan at trial, three and one half years after the incident. However, at the time he made the identification, his encounters with Mr.

Jordan would have been within eighteen months of making that identification. Even at the time of trial, he was able to recall where Mr. Jordan lived when he interviewed him during a previous investigation. At that time, he was the lead investigator and the arresting officer. He also recalled meeting with Mr. Jordan on another occasion relating to a second investigation. [ 68 ] Overall, the evidence satisfies me that Constable Shaw had a sufficient prior acquaintance with Mr. Jordan to be able to view the still photograph and compare the person in the photograph against his recollection of Mr.

Jordan based on this prior acquaintance. His identification of Mr. Jordan as the person in the video provides me with valuable identification evidence. Of course, I also need to assess Constable Walsh’s testimony to determine its ultimate reliability and any weight that I may attribute to it. [ 69 ] In considering the ultimate reliability and any weight to attach to that identification evidence, I am satisfied that Constable Walsh’s identification was independent. There is no evidence that Constable Walsh suggested to Constable Shaw that the person in the photograph was Mr. Jordan.

Constable Shaw was also able to identify specific facial features including the nose, mouth and chin. He was also able to say that the suspect in the video was similar in height and stature to Mr. Jordan.

[ 70 ] While I recognize that the video and the still photograph taken from it were from an elevation of eight to ten feet above, the perpetrator was standing at a counter and other individuals are present in the video. This would allow someone to make an estimate of the suspect’s height. [ 71 ] Overall, having considered his entire evidence, I find that Constable Shaw was not shaken with respect to his testimony that he had independently and positively identified Mr. Jordan in November 2019 as the individual in the still photograph based upon his prior dealings with him.

At that time, he was 100% certain that the individual in the photo was Raymond Jordan. [ 72 ] Finally, as directed by the Supreme Court of Canada in Nikolovski in 1996, I must recognize the importance and usefulness of video evidence. 27 years later, we are no longer dealing with videotape evidence. Advances in technology have enhanced the quality and clarity of such video evidence. [ 73 ] In this case, I have had the benefit of watching the video several times in Court while also having the benefit of contemporaneously observing Mr.

Jordan in the courtroom. [ 74 ] While this was a short trial, spanning three partial days, I had hours of opportunity to observe Mr. Jordan and compare him against the individual in the video. [ 75 ] With respect to the video itself, I also had the benefit of viewing it numerous times during deliberations. The video itself was of a very high quality. The images were sharp and clear. It showed the entirety of the incident in the diner. [ 76 ] While the video is only short, the perpetrator was captured clearly on video for at least 30 seconds. During that time, the video records both sides of his face and body.

I do recognize that the perpetrator was wearing a hat and sunglasses but the video showed clear images of the individual’s nose, mouth, chin and both cheeks. It shows the individual’s distinctive features, such as an angular jawline and indentations or scars on his face. The video also indicates that the person was of the same stature and general height as Mr. Jordan. I was therefore able to make a positive identification of Mr. Jordan based upon my comparison between the person on the video and my view of Mr.

Jordan in Court. conclusion [ 77 ] The video identification, together with the positive identification by Constable Shaw and Keisha Stevenson, whose evidence I accept as credible and reliable, satisfies find me that the Accused is the person shown in the video attempting to commit a robbery at Mary Brown’s Diner with a knife that had been concealed. [ 78 ] I am therefore satisfied beyond a reasonable doubt of the guilt of the Accused on counts 1, 3 and 4. I enter verdicts of guilty in respect of those counts.

I am not satisfied beyond a reasonable doubt of the Accused’s guilt in respect of count 2 and therefore find the Accused not guilty on that count. _____________________________ Rosalie McGrath Associate Chief Justice