R. v. Downey, 2012 NSSC 350

SUPREME COURT OF NOVA SCOTIA Citation: R. v.

Downey, 2012 NSSC 350 Date: 20120530 Docket: Cr. 355507 Registry: Halifax Between: Her Majesty The Queen against Rodan Romeo Downey Judge: The Honourable Justice Patrick Duncan Heard: May 22, 23, 24, 30, 2012 in Halifax, Nova Scotia Written Decision: October 30, 2012 Counsel: Michelle James, Perry Borden and Sean McCarroll, for the Crown Trevor McGuigan for the Defence By the Court : Introduction [ 1 ] Rodan Romeo Downey is charged in a multiple count Indictment alleging that in May of 2009, he conspired to, and did commit an armed robbery, in which two people were abducted at gunpoint by masked men.

The robbers forced one of those persons, Angela Cohoon, to provide access to her place of employment at Beazley Bowling Lanes, where the robbers stole approximately $10,000.

[ 2 ] The common legal issue in each allegation is whether the Crown has proven beyond a reasonable doubt that Rodan Downey was a participant in the commission of the offences. There is also an issue with respect to the proof of the use of a "firearm". Presumption of Innocence and Burden of Proof [ 3 ] Mr. Downey has plead not guilty. He is presumed to be innocent of the crimes charged. The presumption of innocence means that Rodan Downey began the trial with a clean slate. That presumption stays with him throughout the case.

It is only defeated if and when the evidence proves beyond a reasonable doubt that he is guilty of any one or more of the crimes charged. The presumption of innocence also means that Rodan Downey was not required to testify, or present evidence, or prove anything in this case. Reasonable Doubt [ 4 ] A reasonable doubt is not a far fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt to be based on reason and common sense.

It is a doubt that logically arises from the evidence, or the lack of evidence. [ 5 ] It is not enough for me to believe that the Rodan Downey is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. [ 6 ] It is also true that it is nearly impossible to prove anything with absolute certainty. Absolute certainty is a standard of proof that is impossibly high. Plea of Guilty of Another [ 7 ] At the outset of this case, Coulton Downey and Rodan Downey were each charged with the offences that are set out in the Indictment before me.

Coulton Downey entered pleas of guilty to Counts 1, 3 and 4. [ 8 ] Coulton Downey's guilty plea has absolutely no bearing on whether Rodan Downey is guilty. Exception to Hearsay Rule (Co-conspirator's Exception) [ 9 ] Usually, it is only an accused's own words or acts that are evidence to consider in deciding the case of that accused. What one accused says or does is usually not evidence in relation to another accused. I note, as counsel have agreed, that the co-conspirator's exception to the hearsay rule is applicable in my assessment of the relevant and admissible evidence in this case.

Assessment of Evidence [ 10 ] In assessing the evidence it falls to me to decide how much or little of the testimony I accept. I may believe some, none of it or all of it.

[ 11 ] In this case there is "direct evidence" and "circumstantial evidence". I may choose to believe or rely upon either one as much or as little as the other in deciding this case. [ 12 ] The evidence for the prosecution as to the identity of Rodan Downey as one of the people participating in this robbery/kidnapping is circumstantial, so the accused should only be found guilty where I am satisfied that the guilt of the accused is the only reasonable conclusion to draw from the whole of the evidence. Admissions (Code, S. 655) [ 13 ] The parties have presented an agreement as to some of the facts.

I take what the parties have agreed on as facts established beyond a reasonable doubt in this case. Character Evidence [ 14 ] During the course of the trial, the Crown introduced evidence relating to the accused's prior period of incarceration and contact with police agencies to show the familiarity of certain witnesses with the accused, in support of their evidence identifying the accused in a surveillance video recording at the Ultramar station in Porters Lake, and again in court. [ 15 ] Identification of the accused is an issue directly relevant to the Crown's theory.

This evidence also has some bearing on the character and disposition of the Accused. In admitting the evidence I concluded that its probative value outweighed its prejudicial value. But it must be said that the only purpose for admitting the evidence was to speak to identification and I disregard any evidence that relates to the character or disposition of Mr. Downey that showed he was or may have been involved in illegal activity or bad conduct. I do not infer from this evidence of character and disposition that the accused was a person likely to have committed an offence or offences charged.

Joint Principals (Code, S. 21(1)(A))1 [ 16 ] The case for the Crown is that the accused, together with others committed these offences together. [ 17 ] Where a criminal offence is committed by two or more persons, each may play a different part. If they are acting together, as part of a joint plan or agreement to commit the offence, each may be found guilty of it. [ 18 ] It is important to remember, however, that the accused is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt.

Rodan Downey is entitled to separate consideration and in relation to each charge. Trial Evidence [ 19 ] The Crown called evidence from nine witnesses. They introduced documentary evidence and video evidence. The Defence made a number of admissions which eliminated the necessity of calling several other witnesses. Much of the evidence is not contested. I make the following findings of fact, except where otherwise stated. The abduction and robbery

[ 20 ] Angela Cohoon was employed at the Beazley Bowling Lanes and worked from 4 pm to 12 MN on May 12, 2009. She made arrangements with her friend, Chelsea Owen, to be picked up at the end of her shift. Ms. Owen arrived a bit early and waited for Ms. Cohoon. Ms. Owen went outside again while Ms. Cohoon and a co-worker closed down the premises. [ 21 ] Ms. Cohoon and Ms. Owen left Beazley's at around midnight and travelled from there to the residence of Ms. Owen's brother, Evan, located in the Porters Lake area of HRM. Their route took them along Highway 107 leaving it at exit 20 and onto highway #7.

They stopped briefly at a Tim Horton's coffee shop and then continued on until arriving in the driveway leading to Evan's residence. While they were on route, they observed a vehicle following close behind them. It was not identifiable and they lost sight of it after exiting the 107 Highway. [ 22 ] The Crown theory is that the vehicle was occupied by some or all of the robbers, and that it followed the girls off the highway. In the Crown hypothesis, the robbers stopped at an Ultramar gas station that was approximately 150' from, and in a direct line of sight to, the Tim Horton's where the girls were.

Two males exited that vehicle. The first, Coulton Downey, went into the store and purchased, among other things, some sunflower seeds. While in there, a second male, alleged to be Rodan Downey, entered and spoke to Coulton Downey. They left without taking Coulton Downey's change. A series of surveillance videos from Ultramar have been introduced into evidence to support the Crown's position. [ 23 ] According to the timelines estimated in the testimony of both Ms. Cohoon and Ms. Owen, it was likely around 12:25 to 12:30 am of May 13, 2009 when they arrived at Evan's driveway.

This is based upon closing at 12MN at Beazleys', then taking approximately 15-20 minutes to drive from Beazley's to the Tim Horton's and then 3 to 4 minutes from there to Evan's house. The stop at Tim Horton's was estimated to be about 5 minutes. The video evidence provides some further support for this timeline. [ 24 ] Once Ms. Owen stopped her vehicle in her brother's driveway, the girls exited. While getting things from the back of the car, they were approached by "3 or 4 guys" "with guns". This was according to Ms. Cohoon.

She says she observed a "red, boxy, more modern looking car ” and was able to discern a licence plate number that she attempted to memorize. [ 25 ] Ms. Owen testified that it was dark in Evan's driveway. She confirmed that a car pulled up to her side of her vehicle and that people came running out of it at her and her friend. She did not recognize the abductors, describing them as wearing "a lot of dark clothing, hoods, hats, … all covered with bandanas". She confirmed that handguns were pointed at them.

One man grabbed her and pointed a gun to the temple of her head. [ 26 ] The girls were forced into the back of Ms. Owen's car and told to keep their heads down. There were two robbers in the front seats. They followed another car, drove a short distance, stopped and the passenger got out. A different man got in and they started driving again. The vehicle stopped a second time, at the East Preston Recreation Centre. [ 27 ] A conversation took place and two men re-entered Ms. Owen's vehicle. Ms. Owen was required to wear a pillowcase over her head and Ms. Cohoon had a T-Shirt over her head.

They drove to the Beazley Bowling Lanes. [ 28 ] During the drive, questions posed by the robbers together with their comments to the victims made it evident that the robbery was planned. They knew who the girls were - they knew where Ms. Cohoon worked. Their comments and their later conduct while at Beazley's showed familiarity with those business premises. [ 29 ] When they arrived at Beazley's, at approximately 1:13 a.m., Ms. Owen remained outside. She was able to say that two men stayed with her. [ 30 ] Ms. Cohoon was forced to lead the way into the bowling alley.

She used her keys to open the outer door, and then once inside, she disarmed the alarm system. The entry into the building was captured on a surveillance video that has also been admitted into evidence. The video shows her to be under the control of one person wearing a checked coat and sneakers. Two more individuals followed closely. None of the three robbers were recognizable in the video due to their clothing and masks. [ 31 ] Once inside, the robbers disabled or re-directed the inside surveillance cameras so that the rest of the robbery was not captured

on video. Money was taken from a safe and some of the Video Lottery Terminals. It is agreed that it amounted to approximately $10,000. [ 32 ] After exiting the business at approximately 1:18 a.m., the girls were returned to the back seat of Ms. Owen's car. They were driven to the Montague Gold Mines Road. They were told to "stay down for a while". The robbers left the area and after approximately 10 minutes the girls felt it was safe. A 911 call was placed by Ms. Cohoon. During that call, she says she provided the licence plate number from the robbers' vehicle. [ 33 ] Ms.

Owen drove directly to the Cole Harbour RCMP detachment where the victims were interviewed. [ 34 ] Ms. Owen and Ms. Cohoon were in their late teens at the time of the abduction and robbery. As may be expected they were clearly terrified. The Police Investigation [ 35 ] D/Cst. Nick Peplar was assigned as the lead investigator on May 13, 2009. Based on licence plate information he says was received from Angela Cohoon, the police conducted surveillance of a Narico Downey. He was arrested later on May 13, and his vehicle was seized.

A search of the vehicle resulted in the seizure of a pellet gun, an open bag of sunflower seeds, some sunflower shells, three winter toques, and two pairs of gloves. [ 36 ] The police reviewed Narico Downey's text messages and found some phone numbers. Further investigation caused the police to seek and obtain Production orders from Telus Communications for voice and text useage of phones that were associated with those numbers. Those tendered in evidence were subscribed to Rodan Downey, Coulton Downey, Shawntez Downey, and Sharmira Downey. Those records spanned the period May 11-14, 2009. [ 37 ] D/Cst.

Sebastien Decaens, and D/Cst. Craig Upshaw, attended at the Beazley Alley at about 9:30 am on May 13, 2009 to view the scene of the theft and to obtain a copy of surveillance videos from the security cameras. They observed footage showing the robbers entering the premises with Ms. Cohoon. Cst Decaens noted that the time stamp on the video was 12 minutes fast. I note that this information is consistent with a wall clock observed inside the premises and shown by camera 4, prior to its being re-directed. [ 38 ] D/Cst.

Michael Strickland attended at the Ultramar in Porters Lake on May 13, 2009 at approximately 10:00 a.m. looking for a video surveillance tape for the period of time when the victims were in the Tim Hortons. That tape was seized at 10:16 a.m. of that day and was admitted into evidence. I will discuss its contents later.

Analysis [ 39 ] The central issue in dispute in this trial is whether the evidence proves beyond a reasonable doubt the participation and therefore the guilt of Rodan Downey in the offences alleged. [ 40 ] Prior to addressing that question I will set out my findings with respect to the remaining elements of some of the offences alleged. Firearms [ 41 ] Seven of the ten counts in the Indictment allege the use of a firearm or handgun.

[42] The weapons described by the victims were thought to be handguns, which if correct and depending on the type would beeither a prohibited weapon or a restricted weapon. [43] The defence has not taken serious issue with the allegation that handguns were used in the commission of these offences, butthe Crown has the burden of proving beyond a reasonable doubt that a firearm was used as alleged in those counts. [44] A firearm is defined in

section 2 of the Criminal Code as a "barrelled weapon from which any shot, bullet or other projectilecan be discharged and that is capable of causing serious bodily injury or death to a person, …" [45] No firearms were found during the police investigation. No weapons were discharged during the commission of the offences. No guns can be seen in videos from the Ultramar or at Beazley's. An imitation handgun not a firearm was seized from Narico Downey'scar. Even in the light of day it is a convincing replica. So what evidence is there that firearms, within the meaning of

section 2 of theCriminal Code, were used? [46] The crown submits that I am permitted to draw an inference based on a combination of direct and circumstantial evidence toconclude that the weapons were in fact firearms. They direct my attention to the cases of R. v.

Abdullah 2005 OJ 6079 and R. v.Charbonneau (ON CA), 2004 OJ 1503 as examples of cases where courts have held weapons to be firearms when theweapons were not available to the court. [47] In Charbonneau, at paragraph 3, the Ontario Court of Appeal upheld a finding that a weapon was a gun on the basis of thecomplainant's: "…clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with theappellant's threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary.

Taken together, this is asufficient foundation for the trial judge's finding that it was a handgun." [48] In Abdullah, Justice Hockin, of the Ontario Superior Court of Justice reviewed a series of authorities supporting the propositionthat the circumstances may reasonably lead to the conclusion that a weapon used in a commission of an offense was a firearm. [49] In this case, both of the victims described the men as carrying handguns. During the ride to Beazley's one of the men suggestedthat he shoot the gun to prove it was real, something Ms. Cohoon told him was unnecessary - that she believed it was real.

She testifiedthat the first and the second passenger both had "small black handguns". She could see them from her position behind the front seatpassenger by looking between the seats over the console of the vehicle while they were driving. She described the handgun pointed atMs. Owen who was behind the driver. She testified that she could feel a gun in the middle of her back when she was entering Beazley's. [50] Ms. Owen had one of these guns pointed to her head. [51] There is no question that the victims believed these to be real.

There is no question that the robbers wanted them to believethey were real and threatened to prove that fact. [52] Evidence though that might be considered inconsistent with this conclusion is the fact that an imitation gun was found in thevehicle believed to have been used by the robbers on that night. This may suggest that one or more of the guns used would not be afirearm. It is equally possible that it may not have been used at all in the robbery. [53] The police did not recover the clothing worn by the robbers. It is probable that the clothing and the weapons were disposed ofafter the robbery.

Even if the pellet gun was used in the robbery, it does not undermine the conclusion that at least one of the robberswas using a real gun.

[ 54 ] The pellet gun tendered in evidence is very real looking, and it would easily appear real in a darkened vehicle or in a dark driveway. It would be more so the case to a terrorized victim. It was found later on the same day of the robbery in the car which the Crown says was used by the robbers. It seems very possible that it was used in the commission of these offences. [ 55 ] I accept that it is open to me to conclude that firearms were used, but I am not satisfied beyond a reasonable doubt that the guns described by the victims were real.

The circumstances here leave open a very real possibility that the robbers played the role using imitation guns to intimidate the victims. They knew that the girls were unarmed. The threat to shoot the gun could easily have been part of the act to ensure their compliance. [ 56 ] I am satisfied beyond a reasonable doubt that the weapons used were a very good imitations of a handgun . [ 57 ] This finding will impact on the remaining charges.

Section 344- CCC: Robbery (Counts 1 and 2) [ 58 ] I am satisfied that it has been proven beyond a reasonable doubt that these men, acting together, stole approximately $10,000 from Beazley Bowling Lanes and threatened Angela Cohoon and Chelsea Owen with personal violence to their persons. This was done in order to obtain their cooperation in the commission of the theft. I am also satisfied that at the time of the theft at least two of the robbers were armed with an imitation of a firearm. As such the offence of robbery as defined in

section 343 has been proven to have occurred. Because I have a reasonable doubt as to the use of a firearm, the relevant punishment

section is 344(1)(

b) of the Code . Section 279(1.1): Kidnapping (Counts 3 and 4) [ 59 ] I am satisfied that it has been proven beyond a reasonable doubt that on May 13, 2009, between the hours of 12:00 midnight and 2:00 am Angela Cohoon and Chelsea Owen were confined without lawful authority and against their will by a group of five men acting in concert with each other, thereby committing an offence contrary to section 279(1)(a). I am not satisfied beyond a reasonable doubt that the weapons described as handguns used by the abductors have been proven to be "firearms" within the meaning of

section 2 of the Criminal Code and therefore the relevant punishment

section that would apply is 279(2)(

a) of the Criminal Code. Section 351(2)CC: Masked with intent to commit an indictable offence (Count 5) [ 60 ] I am satisfied that these men were masked and did so for the purpose of hiding their identities during the commission of the indictable offences of unlawful confinement and robbery. Section 85(1) (a): Use a firearm in kidnapping (Count 6) [ 61 ] As I have found a reasonable doubt as to whether a firearm was used, but am satisfied beyond a reasonable doubt that an imitation firearm was used, I conclude that the robbers committed an offence contrary to section 85(2) of the Criminal Code .

Section 87(1) : Pointing a firearm (Count 7) [ 62 ] Having found that I am not satisfied that it has been proven beyond a reasonable doubt that a firearm was the weapon pointed at the victims, this charge is not proven and it is dismissed.

Section 88(1): Possession of a weapon for a dangerous purpose. (Count 8) [ 63 ] I am not satisfied beyond a reasonable doubt that a firearm was used during these events, but I am satisfied that an imitation of a handgun was used and that it was done for a purpose dangerous to the public peace. As a result I conclude that the robbers committed an offence of possession of an imitation of a weapon for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code . [ 64 ] I will speak to counts 9 and 10 separately. First I will address the question of identification.

Identification [ 65 ] As indicated the central issue in dispute in this trial is whether the evidence proves beyond a reasonable doubt the identity of Rodan Downey as participating in the planning and execution of the offences which I have accepted as proven. [ 66 ] There is no direct evidence of his participation on the night in question. Theory of the Crown [ 67 ] The Crown submits that through the text messages the evidence establishes that Rodan Downey was identified by name as planning the robbery of Beazley's with Coulton Downey and others.

In fact they suggest that he was the leader of the conspiracy. [ 68 ] They submit that the accused was correctly identified as being in the Porters Lake Ultramar just a few minutes before the abduction; that at that time he was with Coulton Downey and they were travelling in Narico Downey's car, which the prosecution says the robbers used on that night. They point to a distinctive jacket worn by the person who was seen taking Ms. Cohoon into Beazley's and that Rodan Downey had that same jacket on when seen at the Ultramar just a short time before.

Theory of the Defence [ 69 ] The defence says that the prosecution case is a "connect the dots" picture in which the dots have not been adequately connected. In what I would characterize as a very able argument Mr. McGuigan attacks each piece of the Crown's case demonstrating its various weaknesses: 1.

The absence of video or witness evidence placing any of the co-conspirators, and especially the accused, at Beazley's prior to the robbery when under the Crown theory one of them is suggested in the text messages as being there at a specific time and date prior to the robbery and for the purpose of scouting it out; 2. Employment by the police of identification techniques that are unreliable and which tend to undermine the weight to attach to opinions given by police witnesses as to the presence of Rodan Downey in the Ultramar video; 3. A description of the skin color of the robbers given by Ms.

Cohoon which is inconsistent with Rodan Downey's skin color;

4. A failure to properly tie Rodan Downey to the Telus subscriber information; 5. Inconsistencies in the evidence as to when the alleged robbers were at the Ultramar: was it even on May 13, or was it earlier? 6. A failure to establish the accuracy of the time stamp on the Ultramar video; Identification Evidence Angela Cohoon and Chelsea Owen [ 70 ] Ms. Cohoon was able to observe the robbers at the point of abduction, then in the car on the way to the East Preston Recreation Centre. She could not see them after her head was covered. [ 71 ] Ms. Cohoon concluded that the robbers were male, by their voices.

She did not recognize the voices and did not hear names. She said that the men she saw wore dark long sleeved clothing, hats, and blue bandanas around their faces. She could only see their eyes. She concluded the men were black. In cross examination her memory was refreshed by a statement, given to the police, in which she described the men as having very dark black skin tone, not light. Rodan Downey's skin tone is notably lighter than she described. [ 72 ] She distinguished the driver of the vehicle in which they were taken as tall and slimmer, wearing a winter hat with ear flaps that were down.

The second passenger was shorter, stockier, broad and wearing a "regular winter cap". The driver was wearing gloves. She said that the man wearing the coloured jacket in the Beazley surveillance video was the man holding the gun in her back, although she does not suggest that she had seen that jacket earlier. [ 73 ] Ms. Owen said that it was dark in Evan's driveway. She confirmed that a car pulled up to her side of her vehicle and that people came running out of it at her and her friend.

She did not recognize the abductors, describing them as wearing "a lot of dark clothing, hoods, hats, … all covered with bandanas". She confirmed that handguns were pointed at them. One man grabbed her and pointed a gun to her temple. [ 74 ] I accept the testimony of the victims that the persons who abducted them were black males. I accept that there were five robbers: two of whom stayed with Ms. Owen outside Beazley's and three more who went in to the business with Ms. Cohoon to commit the theft.

Beyond that these two witnesses offer little assistance in distinguishing who the offenders are. [ 75 ] The defence brought out that Ms. Cohoon offered a description that night that was inconsistent with that of the accused. i.e., "Rodan Downey's skin tone is notably lighter than she described". I find that observation was made in less than ideal circumstances. It was made in a dark driveway. Any observations made in the car were similarly made in poor lighting conditions and from a poor vantage point. The victims ’ opportunity to observe the kidnappers prior to being hooded was brief and the faces were masked.

There were five people involved in total. Ms. Cohoon and Ms. Owen saw only three of them up close prior to their heads being covered. The clothing of the persons in the driveway and in the car, as described by the victims, was consistent with the second and third men who went into the Beazley Lanes, but not consistent with the person wearing the checked jacket and alleged to have been worn by the accused. In short, it is probable that Ms. Cohoon and Ms. Owen did not see the man in the checked jacket in the driveway or in their car.

If the person wearing the checked jacket at the Ultramar is the same one as seen in the Beazley video, then it is consistent with that person never having contact with the victims until taking over the control of Ms. Cohoon at Beazley ’ s after she was hooded. She did not testify to additional descriptors of the robbers once they were in the Alley.

The Ultramar Video [ 76 ] The Crown case rests heavily on whether Rodan Downey was in the Ultramar with Coulton Downey at a time just prior to, and in close proximity to the location of the abduction. [ 77 ] I will address a few points. Ms. Lapierre was the clerk on duty and who served Coulton Downey as shown in the video. Her evidence is unreliable. She showed no clear memory of the evening in question.

I do not accept that her evidence excludes the possibility that she served Coulton Downey at the time and place shown in the video. [ 78 ] I am prepared to accept that the date and time stamp shown on the video is accurate. The police attended within a few hours of the robbery looking for the video that was created at the time of the victims' attendance at the Tim Horton's. There is no evidence to suggest that they were provided with something other than that which they sought. There is no evidence which I accept that suggests that the video is for a different time or date.

While it would have been preferable to have some further evidence to establish the authenticity of the video, given the challenge raised by the defence questioning, it was not necessary having regard to these other facts. [ 79 ] The quality of the video in the store is reasonably good, though not ideal. The camera angles point down making an assessment of height difficult as well as facial features that one might see looking at a person on the same level. However, the lighting is very good, and it is in colour.

There are different angles which permit an opportunity to see profiles, photos from the rear and from the front of the customers. It is easy to see the general type and colour of clothing. [ 80 ] Coulton Downey was identified by police witnesses as one of the parties in the store and shown in the video. That identification has not been challenged, and there is no evidence to the contrary. I accept that evidence. [ 81 ] The Crown relies upon the evidence of three police officers to identify the second person in the video as the accused.

The defence vigorously attacked those opinions and say that they are not deserving of any weight. [ 82 ] The frailties of eye witness identification evidence are well known and caution must be exercised when assessing it. There is an extra dimension to that evidence in this case. The video itself is in evidence and so I have an opportunity to make my own assessment of the identity of the person shown. Ultimately, it falls to me to make an independent judgment as to what the video shows. [ 83 ] My conclusion is that the person shown in the video is Rodan Downey, the accused.

The hair line, skin colour and the general build of the person in the video are consistent with Mr. Downey's in-court appearance. What particularly stands out is his facial profile which is somewhat distinctive. He can be seen in profile in cameras 1 and 10 at approximately 12:22 am. The quality of the picture I found was better on the larger in courtroom screen than on a personal computer. [ 84 ] I am reinforced in my conclusion, but I have not deferred to the opinions of officers Simmonds, Shannon or Peplar. [ 85 ] Cst.

Peplar obtained the Ultramar video and had still photos made which he then electronically circulated broadly to fellow police officers seeking feedback on whether anyone could identify the persons shown. Csts. Shannon and Simmonds responded. [ 86 ] Cst. Peplar testified that he went to the same junior and senior schools with Rodan Downey for a period of time in the late 1990's. They had not talked though in many years.

He acknowledged that when he saw the video Rodan Downey's name came to mind, but he was not comfortable in saying that it was him in the video so he never mentioned this to anyone prior to distributing the photos. He cannot be said to have identified Rodan Downey in any way that is deserving of much weight.

[ 87 ] Cst. Shannon described how in the period of 1999-2001 he was employed at Springhill Institution where Rodan Downey was housed for a period of time. Mr. Downey stood out to him because his name was unique, because he dealt with him personally on occasion, and because in doing this Mr. Downey was required to present photo identification. He said that he saw Mr. Downey on two occasions since 2001, once in a brief conversation at Alderney Landing on an unknown date and again in 2010 where he observed him once at a distance. [ 88 ] When Cst. Shannon received the photos from Cst.

Peplar he replied in an email that "the light skinned male looks like Rodan Downey". He did not say that it was Rodan Downey and when asked what distinguishing features in the photo caused him to believe it to be the accused, he could only refer to the hair style. The defence correctly says that having regard to the passage of time and infrequent contact between the accused and Cst. Shannon, his evidence is not determinative of the issue and caution should be exercised in placing much weight on the opinion. I have so instructed myself. [ 89 ] Cst.

Simmonds is a member of the North Preston community in Halifax Regional Municipality. The accused also is a member of that community. Cst Simmonds lived there for the first 18 years of his life and his parents still live there. He continues to be a frequent visitor. He has coached basketball teams in the community. The officer used to pick up a team member from a residence a few doors away from Rodan Downey's house. He knew Rodan Downey on sight. They went to school together, though the accused was behind Cst. Simmonds. The accused's older brother was in the same grade as the officer. Cst.

Simmonds described the accused's skin tone, and various hair styles he has used over the years. [ 90 ] Cst. Simmonds also identified Coulton Downey. His younger brother was on a team coached by the officer. Coulton Downey travelled with Cst. Simmonds and sat on the team bench at times. [ 91 ] When Cst. Simmonds received the still photos from Cst. Peplar, they spoke. Cst. Simmonds identified the two persons in the Ultramar as Coulton and Rodan Downey. I have no reason in evidence to believe that there was anything improper by way of coaching or otherwise leading Cst.

Simmonds to his conclusion prior to or during the conversation with Cst. Peplar. [ 92 ] The defence denounces as unreliable the process of identifying these individuals from poor quality still photos, without the benefit of a photographic lineup or an opportunity to view the whole video. [ 93 ] The officers' descriptions are generic and lacking in detail. They were unable to point out distinguishing features of the person in the video that support the conclusion that it was Rodan Downey. Evidence that comparisons were made after the initial identifications to other photos alleged to have shown Mr.

Downey raises the question as to why those photos are not before the court, to permit this court to compare and assess the appearances of Rodan Downey in those photos. Also, the defence points out that there has been no photographic evidence showing what Mr. Downey looked like in 2009 so as to compare that to the person in the video. [ 94 ] For the most

part I agree with the criticisms. Individually the evidence of Constables Peplar and Shannon would not be strong evidence upon which to conclude that their identifications were correct. [ 95 ] Cst. Simmons' evidence is, however, difficult to disregard. He had a long preexisting contact with the accused in a small community. He had many opportunities to observe the accused, in varying circumstances. I am inclined to accept that his opinion must be accorded some weight.

I repeat, however, that my conclusion is not dependent upon his opinion. [ 96 ] Saying that Rodan Downey was one of the persons in the Ultramar Video does not, of course, in and of itself, provide proof beyond reasonable doubt of his participation in the offences. It does place him in close proximity to the scene of the abduction just minutes before it occurred. Texts

[ 97 ] The evidence which brings this case together into a coherent narrative is found in many pieces of evidence. It begins with the Telus text messages. [ 98 ] Again, I accept that the defence has made excellent points in pointing out that the phone records subscribed to Rodan Downey or the other named subscribers does not, without further proof, mean that they are in fact the persons who actually opened the accounts or used the phones. [ 99 ] The Records identify the names and addresses of the subscribers they recorded on creating the account. There is no evidence to suggest that the business record is wrong.

In addition, there is reference in the text messages to the name "Rodan" see for example May 11, 2009 at 12:27:47 where a text from an unidentified caller says "Hey Rodan" and there is a reply from Rodan's phone about 10 minutes later. [ 100 ] I have reviewed the text message records. They are relevant to the offences alleged; they refer to names of parties associated with the offences including Rodan Downey; the substance of some of the messages are consistent with the activities and planning that was executed in commission of these offences.

There is no evidence that raises a doubt as to the use of these phones by persons other than the subscribers. Therefore, I am prepared to draw the inference from the information in evidence that the phone subscribed to by Rodan Downey is the same Rodan Downey who stands accused and that he was the author and recipient of the texts shown in Exhibit 5. [ 101 ] I do not propose to go through the text messages in detail.

They speak for themselves and the Crown has summarized them and I agree that they present a picture of some of the accused's activities for the period of May 11 to May 13, 2009, which are relevant and material to the offences charged. [ 102 ] Before entering into a discussion of the messages, I will say that I have some concerns about the times associated with the messages. Telus records say that "Times are in Eastern Standard Time". The difficulty is that in May of 2009 local time in Halifax was Atlantic Daylight Time. The Eastern Time Zone was also in Daylight Time, not Standard.

I have no independent evidence from which to conclude what the Halifax local time was at the time of the making of these calls, except that it may have been two hours prior to local time, one hour prior to local time, or potentially was equivalent to local time. So for example, 11 pm Eastern Standard Time recorded in the Telus text message report might have been even 11 pm Atlantic Daylight Time as of May of 2009. [ 103 ] When I raised this with Crown counsel they take the position that it does not change their position.

I agree that for the events up to the evening of May 12, 2009, the hour of the day is not crucial to proof of the offences. However, there is some issue of timing as the offences are being committed. I will refer to the times that are used in the Telus records, when I speak of times in the following parts of my decision. In other words, I am taking what the paper shows, I am not trying to guess what it might have intended. [ 104 ] On May 11, 2009 at 1:25:01 pm Rodan speaks of the possibility of going to the bowling alley.

Beginning at 2:53:20 pm of the same day, he texts messages with Shawntez Downey and Coulton Downey about grabbing the money when they clean the machines, which I take to be the VLTs. He notes that there are all women "out here" right now. He tells Coulton to get " Nef and Nico" [which based on the totality of the messages I have reviewed would suggest Nico as Narico. He also says to hurry since they hadn't started cleaning out the machines yet. He tells Coulton Downey that he will let them know when to come in and grab it. At 3:17:40 pm he confirms in plain language that he is “ at the bowling alley".

At 3:23:08 he reports that the man who works there has arrived and so "we have to wait" ... until "tonight". [ 105 ] Between 4:10 pm and 4:20 pm Shawntez asks Rodan where they put the money to which Rodan replied "in the back room". Shawtez says that they are "gonna just do it tonite". Rodan says they will talk about it when he gets there. [ 106 ] At around 7:56 pm of the 11th of May, there is a text exchange between Rodan Downey and Shawntez Downey about taking Naka with them if Narico didn't want to go.

Rodan texts to an unidentified number, at least unidentified in evidence before me, that they are "going to do that thing at 1030".

[ 107 ] This exchange ties the accused to other alleged co-conspirators in the apparent planning to rob the alley on the 11th of May. It suggests that Rodan Downey went to the bowling alley and reported on details of who was there, whether they had taken the money out of the VLTs, and where the money was stored. It is sufficient to tie him in with Coulton, Narico and Shawtez Downey in a conspiracy to rob the Alley. The robbery did not take place that night. [ 108 ] In exhibit 4, at 7:56:41 pm of May 11, there is a text exchange in which Shawntez asks Rodan whether "Naka could come instead of Naricho".

The reply was that he was to ask Rodan. The Crown says this is evidence of Rodan's role as an organizer. [ 109 ] The texts for the evening of May 12 and going into May 13, 2009 contain some incriminating information. It would be more helpful if I knew what the local time was.

Having said that, they are relevant and material and deserve some weight. [ 110 ] Beginning at 10:57:49 pm (being the time recorded on the exhibit) on May 12, 2009, Shawntez texts to Coulton Downey "you guys watch an see who gets in da truck … If u see ( and I think the word is intended to be backpaks) bapags of money get um man … an we will run down." Coulton texts "c who locks da doors n we can go after um". Curiously, if it was established that this was at 11:57:49 local time, that would be exactly the time that Angela Cohoon and Chelsea Owen were leaving the Beazley premises.

I don ’ t have that information, but I do have that is was at some time prior to the commission of the offences. [ 111 ] There are no texts in or out of Rodan Downey's phone between 9:52:57 of May 12, 2009 and 1:00:36 am of May 13. Again, if this was an hour later in local time then it would coincide with the time of the commission of the robbery. It does not, on the face of it, do that however, it is ahead of the robbery somewhat, or overlaps. [ 112 ] There does appear to be a similar gap in the records of Shawntez Downey.

The Crown says that these gaps are consistent with these individuals being otherwise occupied, and they say in the commission of the robbery.

By itself, I find that it might not lead to that conclusion but given the pattern of frequent text communication on these phones, such a large time gap is indicative, at least, of the subscriber being away from or otherwise unable to engage in text messaging. [ 113 ] For all of that, because of the time confusion, I treat this with some caution saying only that taken with other evidence it may be consistent with the participation of the accused in the robbery. [ 114 ] During the day of May 13, there is a text exchange in which Shawntez Downey is told to delete his texts.

Shawntez was asked where his stuff is and a reply is sent. Shawntez tells Rodan to take the gun and the knife out of his "tick", ( I don ’ t know what that means) and so it might be seen in the context of all the other information to be suggestive of a consciousness of guilt on the parts of the participants in that text conversation. Events of May 12 and May 13, 2009 [ 115 ] I am satisfied that the Ultramar video shows Narico Downey's car, Coulton Downey and Rodan Downey at the Ultramar around 12:22 am of May 13.

That coincides with the time that the victims stopped at Tim Horton's very close by and within sight of the Ultramar. [ 116 ] The indoor Ultramar video shows Rodan Downey turning his jacket inside out displaying a checked pattern. It was distinctive in that there is a seam that runs across the back above which the pattern changes from the portion below that seam. The person seen controlling Ms.

Cohoon on the video surveillance as they entered the Beazley Lanes doorway had an identical jacket with the identical pattern on it. [ 117 ] The sneakers that Rodan Downey can be seen wearing at the Ultramar had a particular pattern that I noted. It appears to be identical to those worn by the checked jacketed robber seen going in to Beazley's a short time later.

[ 118 ] The car observed in the Ultramar surveillance video is similar in colour, shape, shape of the lights and front grill to the car seized from Narico Downey the next day. Narico Downey ’ s car contained a bag of barbeque Sunflower seeds that is similar to the one that Coulton Downey is seen purchasing in the Ultramar. I noted that on the cash surveillance camera it records across the bottom the purchases as they are entered. One of those purchases was a bag of barbeque sunflower seeds. [ 119 ] The accused has his hair up in a distinctive pony tail while in the Ultramar.

A similar shape is observed on the head of the masked man in the checked jacket at Beazley's. [ 120 ] While at Beazley's there is a close up of an arm covered in a checked jacket that is misdirecting one of the cameras. It is the same pattern as observed on the jacket Rodan Downey was wearing at the Ultramar. [ 121 ] There is a patch on the left knee of Coulton Downey's pants as seen in the Ultramar video. It appears to be the same or very similar to that on the pants of one of the robbers who followed Ms.

Cohoon and the checked jacketed robber into Beazley's. [ 122 ] The timelines are so tight for travel from the Ultramar to the point of abduction to the point of entry to the bowling alley as to render it highly improbable that the person seen entering the alley in the checked jacket is anyone other than Rodan Downey.

Conclusion [ 123 ] Therefore I conclude the following. [ 124 ] The Crown has met the burden of proof to show beyond a reasonable doubt that Rodan Downey participated with others including Coulton Downey and Shawntez Downey in the abduction of Chelsea Owen and Angela Cohoon, and in robbing Beazley Bowling Lanes. [ 125 ] I find that he scouted the business on May 11 and that an apparent plan to commit the theft that day was formed, but was not executed [ 126 ] Rodan Downey was present in Naricho Downey's car at the Ultramar and it was he who went into the store to get Coulton to return to the car.

The accused was wearing the checked jacket. A very short time later the victims were abducted, likely by others in the group of robbers, but the only inference to be drawn is that it was done with the full knowledge and participation of the accused. [ 127 ] The only reasonable inference is that Rodan Downey travelled in the robbers' vehicle and upon arriving at Beazley's he held a weapon, thought to be a gun, into Ms. Cohoon's person and forced her to let him gain entry. He was masked while he carried out these actions. Once inside he participated in disabling the security surveillance system.

When I reviewed the videos it appeared that the robbers on entering the premises had some familiarity with the location of those video cameras. This type of knowledge is consistent with Mr. Rodan Downey ’ s knowledge of the location that he could have or would have gained during his prior scouting of the premises. I find he also participated in the theft of the monies. [ 128 ] Therefore, in relation to counts 1-8, I find the following: Counts 1 and 2 : Robbery I find Mr. Rodan Downey guilty of robbery punishable pursuant to section 344(1) (

b) of the Criminal Code . Counts 3 and 4 :

I find Mr. Rodan Downey guilty of kidnapping punishable pursuant to section 279(2)(

a) of the Code . Count 5 : I find Mr. Rodan Dowey guilty as charged. Count 6 : I find Mr. Rodan Downey guilty of use of an imitation firearm and so punishable pursuant to section 85(2) of the Criminal Code . Count 7 : I find Mr. Rodan Downey not guilty as I am not satisfied that possession or use of a firearm within the meaning of the Criminal Code has been proven beyond a reasonable doubt. Count 8 : I find Mr.

Rodan Downey guilty of the offence punishable pursuant to section 88(1) of the Criminal Code , but on the finding that the weapon used for a purpose dangerous to the public peace was an imitation of a handgun. As to counts 9 and 10 : [ 129 ] I am satisfied that there is evidence that the accused, from his own acts and declarations, participated in the conspiracy charged.

As such I have considered the acts and declarations of co-conspirators as evidence relevant to determining the accused's culpability. [ 130 ] The facts as I have found them show that on May 11 there was a plan to commit robbery and that the accused and others formed an agreement to carry out that offence.

The events of May 12-13 show the agreement, and the nature of the agreement to carry out that offence. [ 131 ] While I am uncertain as to the exact timing of the conversations I set out as being prior to the robbery and then on the evening of the 12th, the substance of those messages make it clear that it was contemporaneous with the victims exiting the business. The plan was to "go after them" being the people who locked up. That is exactly what happened. Those persons were intended to be kidnapped and they were.

It shows agreement that was acted upon by persons including the accused. [ 132 ] I conclude therefore that the accused, Rodan Downey is also guilty of counts 9 and 10 being conspiracy to commit robbery and conspiracy to commit kidnapping. J.